Immigration, Foreign Affairs and the Constitution

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by Rob Natelson: Had



Is the Immigration
Bill Unconstitutional?

Many “progressive”
opponents of the Arizona immigration law are arguing that the law
is unconstitutional because foreign affairs is exclusively
the province of the federal government

That foreign
affairs is exclusively the province of the federal government is
commonly asserted. But it is a myth – at least if one respects
the Constitution’s text and original understanding.

Before explaining
why, I have to say that a claim that the Constitution reserves powers
exclusively for one level of government is an unusual argument for
“progressives” to make. In general, of course, the most
vocal “progressives” could care less about what responsibilities
the Constitution assigns to what levels of government.

It’s not
just that they favor the federal government invading the sphere
that the Constitution reserves to the states. It’s also that
they have repeatedly urged state and local governments to invade
the supposedly exclusive sphere of the federal government. Remember
all those campaigns for state and local governments to adopt nuclear-freeze
resolutions, South Africa boycotts, and nuclear-free zones?

Anyway, let’s
move beyond the limitless subject of political hypocrisy to describe
just how the Constitution does distribute foreign affairs authority.

First, the
Constitution gives the federal government supreme authority over
foreign policy. Congress and the President can pre-empt an issue
by exercising one or more of their enumerated powers. If Congress
dislikes a state action in that realm, Congress can pass a law overriding

If, however,
Congress has not acted or acted incompletely, the states have certain
reserved powers to act on their own. In other words, the Constitution
acknowledges concurrent, although subordinate, state authority over
foreign affairs – including immigration.

How do we know
this? From both the constitutional text and from the record left
by those who debated and ratified the Constitution. Here is the

  • Instead
    of simply stating that states have no foreign affairs powers,
    the Constitution (Article I, Section 10) only lists a few specific
    foreign affairs powers denied to the states. For example, a state
    may not make a treaty or enter into a confederation with a foreign
  • Under a
    rule of interpretation widely recognized by the Founders, the
    Constitution’s listing implies that all foreign affairs powers
    not denied remain with the states (subject to veto by federal
    law or treaty).
  • In addition
    to prohibiting the states from exercising a few foreign affairs
    powers, the Constitution lists a few others subject to congressional
    pre-approval – such as the power to make non-treaty compacts
    with foreign governments. If foreign policy power were exclusively
    in the federal government, the Constitution would not recognize
    that states had any ability to enter compacts with foreign governments.

  • Nowhere
    does the Constitution include language such as “all state
    authority over foreign relations is hereby abolished.” On
    the contrary, at several points the document assumes some state
    authority over the subject is retained. For example, the Constitution
    explicitly acknowledges state power to tax foreign goods to fund
    inspection programs. It elsewhere assumes that if Congress chooses
    not to adopt a “uniform Rule of Naturalization,” the
    states may adopt their own laws.
  • The historical
    record confirms what the text suggests. For example, the records
    of the Constitutional Convention tell us that the delegates considered
    whether states could impose embargoes on foreign goods, and deliberately
    decided to leave that power with the states. A committee of the
    First Federal Congress recognized this power also.

The doubt about
the judicial fate of Arizona’s law arises only because of the
Supreme Court’s occasional practice of striking down state
laws that Congress has decided to leave alone. This occurs primarily
in the area of commerce and foreign affairs, and appears to be driven
in part by the historically-false claim that federal power in those
areas is exclusive.

On the other
hand, the Supreme Court also sometimes lets such enactments stand.
So what the Court would do with the Arizona law is anybody’s

This is
reprinted from the Tenth
Amendment Center

5, 2010

Natelson is Professor of Constitutional Law at the University of
Montana and a nationally-known expert on the American Founding.
After a quarter of a century in academia, he is leaving this year
to fight full-time for freedom at the Independence Institute in
Golden, Colorado. His constitutional publications can be found at
The views expressed here are his own, not to be attributed to any
organization or institution.

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