The United States Constitution does contain a few references relative to immigration and naturalization as well as to persons seeking to enter the United States in contravention of its laws — whether violently or non-violently and whether singly or in the form of a human tsunami.
In its Article I, Section 8, Clause 4, the Constitution specifically grants Congress the power “To establish a uniform Rule of Naturalization….” By expressly allocating this capacity to Congress, the Constitution seeks to prevent the confusion which would inevitably result if an individual state could itself bestow U.S. citizenship upon a person not born within the boundaries of that — or any other — state.
Construing Clause 4, the United States Supreme Court, in the 1892 case of Boyd v. Nebraska ex rel. Thayer, defined “naturalization” as “…the act of adopting a foreigner, and clothing him with the privileges of a native [U.S.] citizen.”
In Clause 11 of that same Article I, Section 8, the Constitution authorizes Congress “To declare War…and make Rules concerning Captures on Land and Water….”
Interpreting Clause 11, the High Court ruled in the 1795 case of Penhallow v. Doane that the war power of the United States government is an attribute of sovereignty and, thus, is not dependent upon any affirmative grants of a written constitution. Nevertheless, the U.S. Constitution dutifully includes it.
Following that, in Clause 15, the Constitution reposes in Congress the ability to “…repel Invasions”. A related protection may likewise be found in the Constitution’s Article IV, Section 4, reading in part: “The United States…shall protect each [state]…against Invasion….”
These two last two provisions are particularly noteworthy with a Central American migrant “caravan” originating in Honduras, and gaining other members along the way, of thousands of individuals presently walking through Mexico (but sometimes hitching rides on the exteriors of northward trucks), and declaring their final destination to be the United States’ southern border. Upon reaching the 1,940-miles-long United States-Mexico border, they have intentions, no doubt, of storming into our country, just as they so brazenly did when they transitioned from Tecún Umán, Guatemala, forcefully pulling down international border fencing — overwhelming Mexican law enforcement personnel and boldly stampeding into Mexico — on October 19, 2018.
Years earlier, state lawmakers in Arizona, during their 2010 legislative session, and deeply concerned about unlawful entry into the United States by foreign invaders, enacted Senate Bill No. 1070 (known as “Support Our Law Enforcement and Safe Neighborhoods Act”), only to run into a “wall” of a kind very different from what has been vigorously discussed from 2016 to present. Under the 2010 state enactments, Arizona law enforcement was to play a larger role in detection and arrest of unauthorized aliens in the course of daily enforcement activities. In its 2010 S.B. No. 1070, Arizona sought to impose state criminal penalties for alien-smuggling and for failure to carry or complete federal alien registration documents. The state legislation also criminalized unauthorized aliens for applying for, or performing, work in Arizona, either as a direct employee or as an independent contractor.
The U.S. Supreme Court, on June 25, 2012, in Arizona v. United States, invalidated most of the 2010 Arizona state law’s provisions citing federal law’s general pre-emption over state law. Leaving some sections undisturbed, however, the Justices allowed Arizona law enforcement to investigate the status of an individual stopped, detained, or arrested if there is reasonable suspicion that such individual is in the country illegally. Judicially-sacrificed, though, were S.B. No. 1070’s:
● Requirement that legal immigrants carry registration documents at all times; and
● The criminalization of an illegal immigrant’s holding, or searching for, employment within Arizona.
While the Supreme Court’s 2012 ruling again asserted that immigration enforcement is a federal responsibility, if Congress, for whatever reason or reasons, fails to act in repelling an invasion, may the President — in his Article II, Section 2, role as “Commander in Chief” — take matters into his own hands?
Some observers would agree that an invasion is an act of war, even if that intrusion is not directly or officially sanctioned by the government of any particular foreign country or countries. Viewed in this way, an incursion actually in progress, with mobs of persons physically acting in concert to breach America’s southern border, and unlawfully set foot upon U.S. soil, would constitute a de facto invasion and a de facto act of war. Hence, since an act of war would already exist at that point, there would be no necessity for Congress to “declare” it as such. By a vote of 5-to-4, the Supreme Court voiced that very perspective in the 1863 Prize Cases in which the Justices noted that:
The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.”
The theory that the President may repel invasion, without a formal declaration from Congress, was further buttressed by law professor, attorney, and constitutional scholar William Van Alstyne, who opined in “Congress, the President, and the Power to Declare War: A Requiem for Vietnam” (an article published in the November 1972 University of Pennsylvania Law Review):
The interim use of military force solely to repel invasion of the United States or to relieve American citizens from an existing attack is an authorized executive war power granted by the Constitution. That power expires ex proprio vigore when the Congress has had reasonable opportunity immediately to convene and to authorize the continuation or enlargement of hostilities by express declaration, i.e., even the constitutional authorization of emergency executive war power of immediate self-defense terminates upon opportunity and failure of Congress to sustain it by express declaration.”
Expounding upon this logic, Congress, in 1973, enacted Public Law No. 93-148, known as the “War Powers Resolution” (Title 50, United States Code, Chapter 33).
Under the War Powers Resolution, if Congress does not exercise its Article I, Section 8, power to declare war, or to authorize the use of military force, the President may fill that vacuum by introducing American troops into hostilities — but only if the United States has been attacked to a degree sufficient to create a national emergency. The War Powers Resolution then — and only then — gives the President 60 days to address the infringement. That period can be extended by 30 more days if needed, or for such period as Congress summons the fortitude to authorize.
President Trump has already announced his intention to militarize the U.S.-Mexico border in order to block the trekking Central American migrants from penetrating that border as the northbound “caravan” so plainly did at the Guatemala-Mexico border on October 19th.
At the State Capitol, members of the Tennessee General Assembly have likewise expressed serious concern about illegal immigration into our country. Tennessee legislators earlier this year adopted, and transmitted to Congress, House Joint Resolution No. 741, which asks that the federal government:
…construct a secure border wall across our nation’s southern border, and we strongly urge the United States Congress to immediately take action to fund the construction of said border wall without delay….”
If, in the process of such a trespass by unlawful aliens, circumstances were to necessitate that captured undocumented immigrants be housed in the penal and detention institutions of state governments, there is no guarantee that the federal government would offer financial reimbursement to such states for the associated costs. For example, the aforementioned State of Arizona — joined by a State of California that was more sane and more rational than it is today — sought such reimbursement more than two decades ago.
On October 6, 1997, the U.S. Supreme Court refused to even hear the combined Arizona / California case — and, consequently, allowed unfavorable rulings of the 9th U.S. Circuit Court of Appeals to stand intact which had earlier declared that states’ disputes with the federal government over repayment for expenses associated with illegal aliens were covered by the “Political Question Doctrine” and, thus, were not capable of being resolved in the courts and that the definition of “invasion” is limited to a scenario involving “…armed hostility from another political entity.” (Arizona v. United States, Docket No. 96-1595 and California v. United States, Docket No. 96-1596, see 104 F.3d 1086).
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With his decade of work (1982-1992) to gain the 27th Amendment’s incorporation into the U.S. Constitution, Gregory Watson of Texas is an internationally-recognized authority on the process by which the federal Constitution is amended.
Image “Migrant Caravan” by VOA News.