It’s Summer Fundraising Time!

Thank you to all our generous donors who have already contributed to our cause; your support makes a tremendous impact. If you haven’t yet, please consider making a donation today to help us continue our vital work.

$3,745 of $60,000 raised

Sorry, Judge Napolitano: Immigration Isn’t ‘Foreign Policy’

by | Feb 9, 2017

Sorry, Judge Napolitano: Immigration Isn’t ‘Foreign Policy’

by | Feb 9, 2017

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Thomas L. Knapp

Thomas L. Knapp

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

View all posts

Our Books

libertarian inst books

Related Articles

Related

European Elites Commit to Their Self-Destruction

European Elites Commit to Their Self-Destruction

Much to the dismay of the European elites, the people of Europe appear to be resolutely rejecting the status quo. Right-wing parties are gaining ground in almost every European state as a reaction to the consistent failures of the establishment statists. Economic...

read more
The News From Across the Pond

The News From Across the Pond

The recent elections in the United Kingdom and France underscore a broader trend of political stagnation and directionless muddling within Europe. Despite clear signals from voters rejecting the status quo, the established elites are resisting substantive changes,...

read more
TGIF: Culture without Romance

TGIF: Culture without Romance

"The entire history of the human race, the rise of man from the caves, has been marked by transfers of cultural advances from one group to another and from one civilization to another." So said economist, social philosopher, and historian Thomas Sowell in a 1990...

read more
The Means of Our Future Horror

The Means of Our Future Horror

Presidential campaign season is in full heat. Given the vast power of the state, the warring identity lines within our society, and the people’s susceptibility to all manner of propagandistic discourse, it’s looking a lot like midnight in America. Americans consume...

read more

Pin It on Pinterest

Share This