(April 28, 2018) – Over the last couple days, I’ve received a number of emails about Arizona’s new immigration law – and thought it was worthy of some constitutional consideration.

To start – we must keep adherence to the 10th Amendment as a top priority. This means that the federal government is authorized to exercise only those powers that we the people of the several states delegated to it in the Constitution…and nothing more. These are often called the enumerated powers.

Article I, Section 8, Clause 4 of the Constitution empowers Congress to “establish an uniform Rule of Naturalization” – or, more simply stated, to make universal rules about giving foreign-born residents of the United States the “privileges of native” born residents.

The most important thing to consider at this point are the words “immigration” and “naturalization” themselves. While most of us would consider them strongly related, we have to keep in mind that in any 18th Century law dictionary, they would have been seen as two wholly different words, with two separate meanings.

And, if like any legal document, the words of the Constitution mean the exact same thing today as they meant the moment it was signed (barring amendments, of course), it’s imperative that we understand the meanings of such words at the time of the founding.

For example, a common 18th century definition of naturalization was “The act of investing aliens with the privileges of native subjects”, while emigrate had a common meaning of “to move from one place to another.”

Such a delegated power over “naturalization” then, does not specifically address the power over immigration rules in any way. But, Constitutionally-speaking, one also has to then consider the common law doctrine of principles and incidents (i.e. the necessary and proper clause) to find authorization for anything not spelled out in the constitution.

I have yet to hear a convincing argument that control over who can and cannot cross a border was considered by the Founders to be an incidental (lesser and directly required) power related to the delegated power over naturalization.

But, I’m sure someone will try to make one eventually. And yes, I’m all ears! Otherwise, such power is something retained by the people of the several states to be dealt with by their state governments or not – as they see fit.

If this analysis is correct, then Arizona’s new immigration law would be acceptable under the federal constitution. It would then need to be scrutinized for compliance under the Arizona State Constitution (which I have heard almost no mention of in this debate).

At the same time, if my state of California (or any other state for that matter) were to then pass a law allowing more immigration than what Arizona or D.C. or anyone else has allowed, this would also be acceptable under the Constitution – and then would need to be scrutinized for compliance under the State Constitution of that state.

Such “marketplace competition” between states would certainly allow us to see which policy worked best, not only for the economy, but for the amount of freedom vs restriction that people want in their lives. That’s the system that was set up by the founders and ratifiers under the Constitution. It’s called federalism.

The key, of course, would be to remove any federal funding of social programs for people who weren’t “naturalized” under the rules of the federal government. (discussions on the constitutionality of those programs aside for the time being) States, however, could enact their own social programs should they choose – or none at all.

There is one other extremely important point in all this – just because something is “constitutional” does not mean it’s good policy.


Michael Boldin

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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