CRS Annotated Constitution

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The issue, then, of the constitutionality of congressionally– prescribed expatriation must be taken as unsettled.


The Power of Congress to Exclude Aliens

The power of Congress “to exclude aliens from the United States and to prescribe the terms and conditions on which they come in” is absolute, being an attribute of the United States as a sovereign nation. “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.”1199


Except for the Alien Act of 1798,1200 Congress went almost a century without enacting laws regulating immigration into the United States. The first such statute, in 1875, barred convicts and prostitutes1201 and was followed by a series of exclusions based on health, criminal, moral, economic, and subversion considerations.1202 Another important phase was begun with passage of the Chinese Exclusion Act in 1882,1203 which was not repealed until 1943.1204 In 1924, Congress enacted into law a national origins quota formula which based the proportion of admittable aliens on the nationality breakdown of the 1920 census, which, of course, was heavily weighed in favor of English and northern European ancestry.1205 This national origins quota system was in effect until it was repealed in 1965.1206 The basic law remains the Immigra[p.278]tion and Nationality Act of 1952,1207 which, with certain revisions in 1965 and later piecemeal alterations, regulates who may be admitted and under what conditions; the Act, it should be noted, contains a list of 31 excludable classes of aliens.1208

Numerous cases underscore the sweeping nature of the powers of the Federal Government to exclude aliens and to deport by administrative process persons in excluded classes. For example, in United States ex rel. Knauff v. Shaughnessy,1209 an order of the Attorney General excluding, on the basis of confidential information he would not disclose, a wartime bride, who was prima facie entitled to enter the United States,1210 was held to be unreviewable by the courts. Nor were regulations on which the order was based invalid as an undue delegation of legislative power. “Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interest of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent.”1211 However, when Congress has spelled out the basis for exclusion or deportation, the Court remains free to interpret the statute and review the administration of it and to apply it, often in a manner to mitigate the effects of the law on aliens.1212

Congress’ power to admit aliens under whatever conditions it lays down is exclusive of state regulation. The States “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived[p.279]federal power to regulate immigration, and have accordingly been held invalid.”1213 This principle, however, has not precluded all state regulations dealing with aliens.1214 The power of Congress to legislate with respect to the conduct of alien residents is a concomitant of its power to prescribe the terms and conditions on which they may enter the United States, to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern their private relations.1215

Yet Congress is empowered to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940, Congress provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing and willful failure to comply was made a criminal offense against the United States.1216 This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens.1217

An important benefit of this comprehensive regulation accruing to the alien is that it precludes state regulation that may well be more severe and burdensome. For example, in Hines v. Davidowitz,1218 the Court voided a Pennsylvania law requiring the annual registration and fingerprinting of aliens but going beyond the subsequently–enacted federal law to require acquisition of an alien identification card that had to be carried at all times and to be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers’ licenses. The Court did not squarely hold the State incapable of having such a law in the absence of federal law but appeared to lean in that[p.280]direction.1219 Another decision voided a Pennsylvania law limiting those eligible to welfare assistance to citizens and an Arizona law prescribing a fifteen–year durational residency period before an alien could be eligible for welfare assistance.1220 Congress had provided, Justice Blackmun wrote for a unanimous Court, that persons who were likely to become public charges could not be admitted to the United States and that any alien who became a public charge within five years of his admission was to be deported unless he could show that the causes of his economic situation arose after his entry.1221 Thus, in effect Congress had declared that lawfully admitted resident aliens who became public charges for causes arising after their entry were entitled to the full and equal benefit of all laws for the security of persons and property, and the States were disabled from denying aliens these benefits.1222


1199 Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindeist v. Mandel, 408 U. S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530–531 (1954), Justice Frankfurter for the Court wrote: “[M]uch could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. . . . But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history,’ . . . but a whole volume. . . . [T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole for undocumented aliens, the Court avoided it, holding that statutes and regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the Government. Id., 858. That there exists some limitation upon exclusion of aliens is one permissible interpretation of Reagan v. Abourezk, 484 U.S. 1 (1987), affg. by an equally divided Court, 785 F.2d 1043 (D.C.Cir. 1986), holding that mere membership in the Communist Party could not be used to exclude an alien on the ground that his activities might be prejudicial to the interests of the United States.
The power of Congress to prescribe the rules for exclusion or expulsion of aliens is a “fundamental sovereign attribute” which is “of a political character and therefore subject only to narrow judicial review.” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430 U.S. 787, 792 (1977). Although aliens are “an identifiable class of persons,” who aside from the classification at issue “are already subject to disadvantages not shared by the remainder of the community,” Hampton v. Mow Sun Wong, supra, 102, Congress may treat them in ways that would violate the equal protection clause if a State should do it. Diaz, supra (residency requirement for welfare benefits); Fiallo, supra (sex and illegitimacy classifications). Nonetheless in Mow Sun Wong, supra, 103, the Court observed that when the Federal Government asserts an overriding national interest as justification for a discriminatory rule that would violate the equal protection clause if adopted by a State, due process requires that it be shown that the rule was actually intended to serve that interest. The case struck down a classification that the Court thought justified by the interest asserted but that had not been imposed by a body charged with effectuating that interest. See Vergara v. Hampton, 581 F.2d 1281 (C.A. 7, 1978).

Supplement: [P. 276, add to n.1199:]

See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (construing statutes and treaty provisions restrictively to affirm presidential power to interdict and seize fleeing aliens on high seas to prevent them from entering U.S. waters).

1200 Act of June 25, 1798, 1 Stat. 570 . The Act was part of the Alien and Sedition Laws and authorized the expulsion of any alien the President deemed dangerous.
1201 Act of March 3, 1875, 18 Stat. 477 .
1202 22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, and persons likely to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain diseases, those convicted of crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 1213 (1903) (epileptics, insane persons, professional beggars, and anarchists); 34 Stat. 898 (1907) (feeble–minded, children unaccompanied by parents, persons suffering with tuberculosis, and women coming to the United States for prostitution or other immoral purposes).
1203 Act of May 6, 1882, 22 Stat. 58 .
1204 Act of December 17, 1943, 57 Stat. 600 .
1205 Act of May 26, 1924, 43 Stat. 153 .
1206 Act of October 3, 1965, P.L. 89–236, 79 Stat. 911 .
1207 Act of June 27, 1952, P.L. 82–414, 66 Stat. 163 , 8 U.S.C. §§ 1101 et seq. as amended.
1208 The list of excludable aliens may be found at 8 U.S.C. Sec. 1182 . The list has been modified and classified by category in recent amendments.
1209 338 U.S. 537 (1950). See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which the Court majority upheld the Government’s power to exclude on the basis of information it would not disclose a permanent resident who had gone abroad for about nineteen months and was seeking to return on a new visa. But the Court will frequently read the applicable statutes and regulations strictly against the Government for the benefit of persons sought to be excluded. Cf. Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963).
1210 Under the War Brides Act of 1945, 59 Stat. 659 .
1211 Id., 338 U.S., 543.
1212 E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966).
1213 Takahashi v. Fish & Game Commission, 334 U.S. 410, 419 (1948); De Canas v. Bica, 424 U.S. 351, 358 n. 6 (1976); Toll v. Moreno, 458 U.S. 1, 12–13 (1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S. 365, 376–380 (1971).
1214 E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–649 (1973); De Canas v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez–Salido, 454 U.S. 432 (1982).
1215 Purporting to enforce this distinction, the Court voided a statute, which, in prohibiting the importation of “any alien woman or girl for the purpose of prostitution,” provided that whoever should keep for the purpose of prostitution “any alien woman or girl within three years after she shall have entered the United States” should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909).
1216 54 Stat. 670 , 8 U.S.C. §§ 1301 –1306.
1217 See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941).
1218 312 U.S. 52 (1941).
1219 Id., 68. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the Court upheld a state law prohibiting an employer from hiring aliens not entitled to lawful residence in the United States. The Court wrote that States may enact legislation touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state law.
1220 Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez–Salido, 454 U.S. 432 (1982).
1221 8 U.S.C. §§ 1182 (a)(8), 1182(a)(15), 1251(a)(8).
1222 See 42 U.S.C. Sec. 1981 , applied in Takahashi v. Fish and Game Commission, 334 U.S. 410, 419 n. 7 (1948).
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