IMMIGRATION AND ALIENAGE (Update 2)

The Constitution's silences about immigration and the rights of aliens leave great room for interpretation and contestation. The text does not confer an express immigration power on the federal government. Before the civil war, states often attempted to regulate immigration, directing their police power against the poor, the sick, criminals, and free blacks. After 1875, the Supreme Court began to deny the states' authority, relying variously on Congress's foreign commerce power, its naturalization power, and implied powers of national sovereignty in foreign affairs. The Court's focus on a linkage to foreign affairs has contributed to extreme judicial deference to congressional determinations of substantive immigration policy, even where the constitutional rights of aliens or of citizens are affected.

The bill of rights makes no explicit reference to citizens, noncitizens, or citizenship and terms like "person" and "accused" in the Fifth and Sixth Amendments presumably include aliens as well. In the debates over the Alien Act of 1798, some federalists sought to reserve rights to citizens as the exclusive parties to the constitutional compact. Their Jeffersonian opponents' position, which emphasized the mutuality between subjection to the law and legal rights, has prevailed. Ambiguities remain, however, regarding rights of aliens against extraterritorial government action, and some judges and advocates have sought to reopen the question of the rights of aliens unlawfully present in the United States. In United States v. Verdugo-Urquídez (1990), a majority of the Court held that the fourth amendment did not limit the federal government's power to search the home in Mexico of a nonresident alien. The opinions reflect several different theories about the reach of constitutional rights. Portions of Chief Justice william h. rehnquist's opinion invoked the Fourth Amendment's reference to "the people," a category that he viewed as including lawfully resident aliens, but not aliens outside the United States, and possibly not unlawfully resident aliens. Justice anthony m. kennedy's crucial concurring opinion rejected this textual argument, and adopted instead a flexible due process approach to determining aliens' extraterritorial rights. The dissenting opinions of Justices william j. brennan, jr. , and harry a. blackmun favored extension of the mutuality approach. The fact that the case involved extraterritorial government action deserves repetition; it is well settled, for example, that aliens outside the United States enjoy constitutional protection for their property inside the United States.

Earlier predictions that permanent resident aliens were acquiring full social membership or that U.S. citizenship was suffering devaluation required revision after 1996 when Congress passed the illegal immigration reform and immigrant responsibility act. Congress reinvigorated the historical policy against migration of the poor, and drew sharp distinctions between citizens and aliens in eligibility for many government benefits. Congress also authorized the states to draw similar distinctions in their own benefit programs, in a manner that challenged prior Court cases such as graham v. richardson (1971). These changes in benefit policy, and the anti-immigrant atmosphere against which they were enacted, prompted enormous increases in the demand for naturalization. It may be debated in what sense these events restored the value of citizenship.

Gerald L. Neuman
(2000)

Bibliography

Hing, Bill Ong 1998 Don't Give Me Your Tired, Your Poor: Conflicted Immigrant Stories and Welfare Reform. Harvard Civil Rights–Civil Liberties Law Review 33:159–182.

Neuman, Gerald L. 1996 Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton, N.J.: Princeton University Press.

Schuck, Peter H. 1997 The Re-Evaluation of American Citizenship. Georgetown Immigration Law Journal 12:1–34.