Locating the Foreign Affairs Power
I took issue with the assertion that the constitution contains an express and exclusive grant of federal authority over immigration. Although some constitutional provisions, such as the Naturalization Clause and the Foreign Commerce Clause, can be considered immigration-adjacent, there is just no explicit delegation of immigration power to the federal government, much less an exclusive one.
Yet, in Arizona v. U.S., the Supreme Court applied the doctrine of “field preemption” to invalidate an Arizona immigration law, although it was not inconsistent with federal law. Under field preemption, the federal government “occupies the field,” preempting any and every state law on the subject in question, regardless of whether the state law actually conflicts with federal law. Indeed, the Arizona law struck down in that case purported to support implementation of federal immigration law. No dice.
After a throw-away reference to the Naturalization Clause, the court in Arizona situated federal immigration power in the national government’s “inherent power as sovereign to control and conduct relations with foreign nations.” Great, except that looks like the same problem with extra steps, because there is no explicit grant of foreign affairs power in the constitution either. Instead, the inherent sovereignty approach posits that the United States has certain powers arising from its status as a sovereign nation, regardless of whether they are mentioned in the constitution.
This doctrine was distilled in U.S. v. Curtiss-Wright Export Corp1, wherein Justice Sutherland argued in 1936 that the normal rule that the federal government may only exercise those powers specifically enumerated in the constitution applies only to “our internal affairs.” The power to govern external affairs, i.e. relations with foreign nations, on the other hand, passed directly from the British Crown to the United States at Independence automatically and outside of the constitution. Hence, according to Justice Sutherland, the “powers of external sovereignty did not depend on the affirmative grants of the Constitution.”
One problem with this analysis, as Professor Ramsey points out in The Constitution’s Text in Foreign Affairs, is that it fails to account for that pesky Tenth Amendment, which provides that
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Neither the Tenth Amendment, nor any other constitutional provision, makes the distinction between internal and external powers on which Justice Sutherland relied. On the contrary, the Tenth Amendment is categorical: if the constitution does not expressly give a power to the federal government, then the feds don’t have it.
What about Justice Sutherland’s inherent foreign affairs power? If it wasn’t transferred automatically to the federal government, where did it go? Well, the Tenth Amendment suggests the answer: the People are the ultimate sovereign and so any inherent right of sovereignty would have transferred to the People, not the federal government. It was then up to the People to delegate that power in the constitution, or not, as they saw fit.
But fear not, Professor Ramsey can locate the textual grant of foreign affairs power to the federal government in Art. II, Sec. 1, which vests the “executive Power” in the President of the United States. That’s counter-intuitive, because we normally associate executive power with the authority to carry laws into effect, not to conduct relations with foreign governments.
Professor Ramsey, however, argues that in eighteenth century political science parlance, “executive power” encompassed both of those functions. He explains:
At the time of the Constitution’s drafting and ratification, [ ] key English and European political writers called law execution power and foreign affairs power collectively “executive” powers. The Constitution’s drafters and ratifiers surely knew this, for Blackstone and Montesquieu, in particular, were the leading authorities to whom founding-era Americans turned for guidance in structuring their new government.
Ok, I’m glad originalism can identify foreign affairs textually within the grant of executive power. But to return to our original quandary, does that include a textual basis for immigration power? In Arizona v. U.S., the court argued that
Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws … Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad … It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.
Sure, but just because immigration policy affects foreign affairs does not necessarily make regulating immigration a foreign affairs function, especially not an executive foreign affairs function, in the eighteenth century meaning. Foreign affairs was considered executive because it primarily consists of doing stuff, like conducting diplomacy, waging war, gathering intelligence, and so on. To the extent foreign affairs requires the establishment of substantive laws (a legislative function), the constitution sets forth a distinct procedure for treaty-making.
The setting of rules about which aliens may be admitted and which not seems, on the other hand, obviously a legislative activity. And the Importation Clause, which refers obliquely to the power of “Congress” to limit migration, supports that intuition. If the federal government has immigration power, we would expect to find it in Article I, as an enumerated legislative activity.
So while we’ve located a textual basis for the foreign affairs power in Article II, we still don’t know where the federal government’s immigration power comes from, much less why it’s exclusive.
Curtiss-Wright involved the challenge to a congressional delegation of authority to the president to prohibit arms sales to certain countries in his discretion. The court upheld the delegation.