Immigration Article of the Day: An Unreasonable Presumption: The National Security/Foreign Affairs Nexus in Immigration Law by Anthony Demattee, Matthew J. Lindsay, & Hallie Ludsin

Abstract

For well over a century, immigration governance has occupied a constitutionally unique niche within American public law, where it is subject to substantially weaker constitutional constraints than apply in virtually every other context. When the federal government banishes a noncitizen from the country or detains her for months or years at a time, that noncitizen does not enjoy the same right to due process of law to which constitutional “persons” otherwise are entitled. This largely unbounded federal authority was a relatively late historical innovation. It was not until the 1889 Chinese Exclusion Case that the Supreme Court characterized the federal immigration power – until then, an instance of Congress’s authority to regulate commerce with foreign nations – as an “incident of sovereignty belonging to the government of the United States.”

KJ