So You Think Federal Government has Exclusive Power to Regulate Immigration?

by VINCENT GIOIA September 16, 2010
In court decision after court decision the Federal government is assumed to have the exclusive authority to determine immigration policies and states such as Arizona are said to seek to usurp the powers of Congress to regulate immigration. However this is not true and all courts limiting states in this regard are simply wrong.
Article 1, Section 8 sets forth all the powers given to Congress by the Constitution. Under the 10th Amendment all powers not delegated to the United States by the Constitution are reserved to the states and the people. None of the powers delegated to the United States under Article 1, Section 8 include the exclusive authority to regulation immigration.
The only power among those delegated to the Federal government with respect to the subject of immigration at all is "... To establish an uniform Rule of Naturalization... "
Although the Arizona law case has not been tried yet, a Federal Appeals Court has struck down a law passed by the Pennsylvania town of Hazleton as a usurpation of the Federal government's "exclusive" power to regulate immigration.
But as pointed out the truth is, Congress has not been granted the exclusive power to regulate “immigration." Congress has been granted only the exclusive power “To establish an uniform Rule of Naturalization.”
Immigration and naturalization are two entirely different and distinct things. Migration or immigration is the movement of people from one place to another, while naturalization is the act by which an alien becomes a citizen.
It is noteworthy that regulation over immigration within a State's borders is a power originally exercised by the States prior to the adoption of the Constitution and was never intended to be relinquished to Congress, nor was it relinquished by any wording in our Constitution. The only exception with regard to the Migration or Importation of such Persons as any of the States then existing thought proper to admit, is stated in Article 1, Section 9 and was expressly limited by its wording which is not inconsistent with Article 1, Section 8.
The power over naturalization which is granted exclusively to the Federal government is nothing more than the ability to establish the requirements which an alien must meet to become a citizen of the United States.
The limitation on the Federal government was intentional. According to Representative Sherman who attended the Constitutional Convention which framed the Constitution:
“Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner."
The exclusive authority to establish rules for naturalization was meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several States. [See CONGRESSIONAL DEBATES, Rule of Naturalization, Feb. 3rd, 1790, page 1148.]
During the debate about the Rules of Naturalization another representative, Representative White, noted the narrow limits of what “Naturalization” [the power granted to Congress] means, and he ”doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States…..all, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization and not to a general definition of what constitutes the rights of citizenship in the several States.” [see: Rule of Naturalization, Feb. 3rd, 1790, page 1152.]
In the same debate still another representative, Representative Stone, concluded that the "laws and constitutions of the States, and the constitution of the United States; would trace out the steps by which they should acquire certain degrees of citizenship" [page 1156]. "Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized, under a general law, shall be entitled to privileges which the States withhold from native citizens." [See: Rule of Naturalization, Feb. 3rd, 1790, pages 1156 and 1157.]
Our county's founders were very concerned about the quality, loyalty and virtue of immigrants who became a citizen of one of the States because once an immigrant became a citizen of one state, they would be entitled to all Privileges and Immunities of Citizens in the several States. [Article 4, Section 2]
It is clear that the intention of placing power over "naturalization" in Congress was to prevent states from granting citizenship to aliens deemed unworthy. Congress was given the power to set the specific requirements an alien must meet before being granted citizenship so as to insure a high quality immigrant population but the States retained the power over aliens within their borders.
The bottom line is that the court in the Hazleton case, and many other courts and the Department of Justice, fail to understand the Constitution and its legislative history; nothing in the Constitution grants exclusive power to the federal government to establish rules by which states may choose to limit illegal immigrants in their respective state. Contributing Editor Vincent Gioia is a retired patent attorney living in Palm Desert, California. His blogs at and he may be contacted at

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