We're Not One of Them. We're One of You.

At the Libertarian Institute, we feature independent intellectuals who strive to understand our world and communicate that understanding to you. We don’t work for Lockheed or K Street or Qatar. We work for you. Support the Libertarian Institute Today!

$2,406 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

Shop books published by the Libertarian Institute.

libetarian institute longsleeve shirt

Our Books

15 books

Recent Articles

Recent

Lew Rockwell, Champion of Liberty

Lew Rockwell, Champion of Liberty

This summary of Lew Rockwell’s contributions to the liberty movement will show that Lew has done more to spread libertarian ideas than anyone else not named Ron Paul. Lew was born in Boston in 1944. His father was an “Old Right” Republican who gave Lew a copy of Henry...

read more
The Isolation is Over: Trump Calls Putin

The Isolation is Over: Trump Calls Putin

Since Russia invaded Ukraine in February 2022, the United States has led an international campaign to shun and isolate Russian President Vladimir Putin. Former U.S. President Joe Biden did not talk to Putin once after the war began. That policy of isolation is now...

read more

Pin It on Pinterest

Share This