Presidential Power Over Immigration

Does the President have authority over immigration?  That question cannot be answered by quoting a particular article, section, and clause.  Only application of proper Constitutional principles will answer that question.

First, we must consider whether immigration is a power even delegated to the federal government.  The answer to that question is yes and no.  The authority to create “an uniform Rule of Naturalization” is vested in the federal government.  However, not everything our federal government currently considers as immigration falls under this delegation.

The power over foreign immigration is delegated through Article 1 section 8 clause 4; “To establish an uniform Rule of Naturalization.”   Because it is delegated under Article 1, we know this power is specifically vested in Congress.  Separation of powers dictates that since the power to establish this Rule is rests in Congress, it cannot be exercised by any other branch.  We can see that the executive branch cannot ESTABLISH the Rule of Naturalization, but what authority does the President have over the naturalization process?

Article 2, section 1, clause 8 tells us the Oath each President must take before he enters into office.  This oath lays the foundation for all executive power:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

The President’s primary responsibility is to “preserve, protect and defend the Constitution of the United States.”  To fulfill this obligation, the President must exercise the powers delegated to the executive branch, but he also must refuse to exercise any power not delegated.  To exercise power not delegated is destructive to the Constitution and a violation of his oath to preserve, protect and defend the Constitution.

Article 2, section 2, clause 1 lists powers delegated to the executive branch as follows:

  1. Commander in Chief upon declaration of war by Congress;
  2. Opinions in Writing to Congress; and
  3. Reprieves and Pardons except in cases of impeachment.

Article 2, section 2, clauses 2 and 3 continue the list powers delegated to the executive branch:

  1. Treaties with consent of Senate; and
  2. Nominations of certain officers.

Article 2, section 3 concludes the list powers delegated to the executive branch:

  1. State of the Union to Congress;
  2. Under extraordinary circumstances convene Congress;
  3. Receive Ambassadors and other “public Ministers;”
  4. “he shall take Care that the Laws be faithfully executed;” and
  5. Commission all the Officers of the United States.

Although there is no mention of a power over naturalization delegated to the President, it is under the second to last clause of Article 2, section 3 that the President’s authority over all Laws is established.  The President must “take Care” that these “Laws” be faithfully executed; that would include the uniform Rule of Naturalization established by Congress under Article 1, section 8, clause 4.

It is significant to note that in Article 2, section 3 the word “Laws” is capitalized.  This means this terms is referring to specific laws, not just laws in general.  How do we know which “Laws” the President is required to faithfully execute?  We must cross reference this section with the section of the Constitution that defines which Laws are valid pursuant to the Constitution; Article 6, section 2.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Congress is not authorized to create any law they can imagine nor can they constitutionally establish any law they can get passed by a majority vote and signed by a President.  Congress is limited in their law-making authority to laws that are “made in Pursuance” to the Constitution.  If a power has not been specifically delegated by enumeration to Congress, then the law is unconstitutional.  Alexander Hamilton gives the best explanation of Article 6 section 2 and also offers up a few words of warning:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” Fed #78

Hamilton is simply explaining that if any legislative act that uses a power not delegated, that law is invalid; it is no law at all.  However, there are consequences to ignoring this essential doctrine.

“To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Fed #78

To allow Congress the authority to create any law they can conceive or any law they can pass through majority, would be to destroy the limited nature of government and establish an arbitrary power transforming our federal government into masters and the people into subjects.  If a legislative act is not rooted in a delegate power, it is not made in pursuance to the Constitution and is no law at all.  In such a case, an essential check and balance upon legislative authority would be the executive’s refusal to execute such a law.  Remember, the President’s oath is to “preserve, protect and defend the Constitution” not preserve, protect, and defend all legislative acts.  The only obligation the President has to a legislative act is to execute only those laws that are made in Pursuance to the Constitution.

Applying these principles, we can see refugee status is not a power delegated to the federal government.  Refugee status is not uniformed and it is not a pathway to Naturalization, therefore the United States Refugee Act is an unconstitutional legislative act.

Therefore, the power the President has over “immigration” is limited to what is established by the Constitution.  The President cannot establish new rules of Naturalization.  He cannot issue waivers to overturn rules of Naturalization that are established in compliance with the Constitution.   The President must faithfully execute the uniform Rule of Naturalization constitutionally created by Congress.  And, the President must also uphold his oath and exercise his duty of checks and balances by refusing to execute any “immigration” laws not made in Pursuance to the Constitution: e.g. congressionally established Refugee Programs.

Is the legislative act Constitutional? The President must faithfully execute.  Is the legislative act unconstitutional? The President must be a check and balance.