Does the President have authority over immigration? That question cannot be answered by quoting a particular article, section, and clause. Only application of proper Constitutional principles will answer that question.
First, we must consider whether immigration is a power even delegated to the federal government. The answer to that question is yes and no. The authority to create “an uniform Rule of Naturalization” is vested in the federal government. However, not everything our federal government currently considers as immigration falls under this delegation.
The power over foreign immigration is delegated through Article 1 section 8 clause 4; “To establish an uniform Rule of Naturalization.” Because it is delegated under Article 1, we know this power is specifically vested in Congress. Separation of powers dictates that since the power to establish this Rule is rests in Congress, it cannot be exercised by any other branch. We can see that the executive branch cannot ESTABLISH the Rule of Naturalization, but what authority does the President have over the naturalization process?
Article 2, section 1, clause 8 tells us the Oath each President must take before he enters into office. This oath lays the foundation for all executive power:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The President’s primary responsibility is to “preserve, protect and defend the Constitution of the United States.” To fulfill this obligation, the President must exercise the powers delegated to the executive branch, but he also must refuse to exercise any power not delegated. To exercise power not delegated is destructive to the Constitution and a violation of his oath to preserve, protect and defend the Constitution.
Article 2, section 2, clause 1 lists powers delegated to the executive branch as follows:
- Commander in Chief upon declaration of war by Congress;
- Opinions in Writing to Congress; and
- Reprieves and Pardons except in cases of impeachment.
Article 2, section 2, clauses 2 and 3 continue the list powers delegated to the executive branch:
- Treaties with consent of Senate; and
- Nominations of certain officers.
Article 2, section 3 concludes the list powers delegated to the executive branch:
- State of the Union to Congress;
- Under extraordinary circumstances convene Congress;
- Receive Ambassadors and other “public Ministers;”
- “he shall take Care that the Laws be faithfully executed;” and
- Commission all the Officers of the United States.
Although there is no mention of a power over naturalization delegated to the President, it is under the second to last clause of Article 2, section 3 that the President’s authority over all Laws is established. The President must “take Care” that these “Laws” be faithfully executed; that would include the uniform Rule of Naturalization established by Congress under Article 1, section 8, clause 4.
It is significant to note that in Article 2, section 3 the word “Laws” is capitalized. This means this terms is referring to specific laws, not just laws in general. How do we know which “Laws” the President is required to faithfully execute? We must cross reference this section with the section of the Constitution that defines which Laws are valid pursuant to the Constitution; Article 6, section 2.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Congress is not authorized to create any law they can imagine nor can they constitutionally establish any law they can get passed by a majority vote and signed by a President. Congress is limited in their law-making authority to laws that are “made in Pursuance” to the Constitution. If a power has not been specifically delegated by enumeration to Congress, then the law is unconstitutional. Alexander Hamilton gives the best explanation of Article 6 section 2 and also offers up a few words of warning:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” Fed #78
Hamilton is simply explaining that if any legislative act that uses a power not delegated, that law is invalid; it is no law at all. However, there are consequences to ignoring this essential doctrine.
“To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Fed #78
To allow Congress the authority to create any law they can conceive or any law they can pass through majority, would be to destroy the limited nature of government and establish an arbitrary power transforming our federal government into masters and the people into subjects. If a 
legislative act is not rooted in a delegate power, it is not made in pursuance to the Constitution and is no law at all. In such a case, an essential check and balance upon legislative authority would be the executive’s refusal to execute such a law. Remember, the President’s oath is to “preserve, protect and defend the Constitution” not preserve, protect, and defend all legislative acts. The only obligation the President has to a legislative act is to execute only those laws that are made in Pursuance to the Constitution.
Applying these principles, we can see refugee status is not a power delegated to the federal government. Refugee status is not uniformed and it is not a pathway to Naturalization, therefore the United States Refugee Act is an unconstitutional legislative act.
Therefore, the power the President has over “immigration” is limited to what is established by the Constitution. The President cannot establish new rules of Naturalization. He cannot issue waivers to overturn rules of Naturalization that are established in compliance with the Constitution. The President must faithfully execute the uniform Rule of Naturalization constitutionally created by Congress. And, the President must also uphold his oath and exercise his duty of checks and balances by refusing to execute any “immigration” laws not made in Pursuance to the Constitution: e.g. congressionally established Refugee Programs.
Is the legislative act Constitutional? The President must faithfully execute. Is the legislative act unconstitutional? The President must be a check and balance.
KrisAnn,Does he not have authority to protect our boarders and to protect us from enemies foreign and domestic.?
You do know that the US government is the domestic enemy to the people, if you still believe that there is a government BY, OF and FOR the people like the founders intended it to be then you’re a gullible fool. The act of 1871 made from the united States of America the United States Incorporated under control of the global bankers and corporate elites who own the federal reserve.
I’ve been told:
“8 us code1182 section f is the congress giving power to suspend entry to the executive branch to protect US from harm, temporary or pending review by judicial branch. IMO that’s constitutional.”
… is that true?
The first part of the law is “Whenever the President FINDS that the entry of any aliens or of any class of aliens into the United States would be detrimental . . . ”
What does it mean that the president “finds” out something. It implies that there be some kind of evidence, in the real world, to support a finding.
The courts can ask for such evidence, and clearly lacking any, a president’s action would be simply based on some capricious whim.
The law does not state “Whenever the President has a CAPRICIOUS WHIM that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Jerry, how many need to die from terrorist attacks before the President’s “findings” are justified? Look around and you’ll see that we are targeted by terrorists, both domestic and abroad and only getting worse….
Specifically, I can think of 2,996 who were killed by 19…
I can think of victims like Kate Steinle
And I can think of 2 of my daughters who were exposed to Tuberculosis and will forever test positive because someone snuck across the border with an active case.
So who controls entrance of refugees to the US, no one? Who has the authority to allow or disallow? You wrote nothing about this particular subject only about who has authority over preset immigration laws. The rule for immigration is clearly set forth. All illegal entrance is against the law and someone has to have control over refugees seeking political asylum or escaping war and abuse. How can we not have the right to determine who is allowed to enter our own country?
Who has the authority to allow or disallow? You wrote nothing about this particular subject only about who has authority over preset immigration laws. The rule for immigration is clearly set forth. All illegal entrance is against the law and someone has to have control over refugees seeking political asylum or escaping war and abuse. How can we not have the right to determine who is allowed to enter our own country?
Jerry,
The law itself answers your question, “Whenever the President FINDS”, leaving the decision up to his own judgment. If the Legislative Branch finds it does not like is actions and/or judgment he exercises under the authority they gave to him, they can take away the authority.
It appears you are suggesting that the Judicial Branch has the authority to substitute its opinion and/or judgment for that of the Executive Branch, or at the very least demand the Executive Branch explain all its actions to the satisfaction of the Judicial Branch. Where is the authority in Article III that gave the Judicial Branch any jurisdiction or authority to take any action? The Judicial Branch does not have the authority to give itself power, but has given itself and enormous amount unconstitutional power because the Legislative Branch, the states and the people have failed to keep it within its constitutional bounds. It is not the arbitrator of what is constitutional except on a case before upon which it has jurisdiction.
The Judicial Branch has no authority to write “the law of the land” or “declare itself to be the final authority on the intent of our constitution”, that authority belongs to the people and the states. Our Constitution is a compact/contract entered into to create a federal contractor, (our federal government) with limited and enumerated authority controlled by the people and the states. Who would give a contractor they hired to build their house the full authority to build their house any way the contractor wanted? NO ONE. Why then do the people allow the Judicial Branch (their contractor) to be the de facto rulers of this country?
Only U.S. citizens have constitutionally protected rights and there is no support for any other position. Court opinions do not count. Due process is a protection only citizens (parties to the compact) can claim. However that does not mean we may not offer reasonable due process to non citizens, which can be desirable in some situations, because it protects the integrity of our government actions and provides for equal treatment of non citizens. However the extent of that due process is our choice not a constitutional guarantee and can only be given by the Legislative Branch regarding constitutional acts of the federal government. The Judicial Branch has no jurisdiction to declare rights for non citizens.
While many will disagree, Article 1 section 8 clause 4; “To establish an uniform Rule of Naturalization.” Grants the full authority to the Legislative Branch with no restrictions. I am not suggesting this, but if the Legislative Branch choose to do so, it could stop all immigration or limit immigration to blond haired blue eyed people and it would be constitutional.
In regard to the “establishment clause” it does not exist, it is something made up out of whole cloth by the Judicial Branch. A position I can clearly and unquestionably support and prove. Our constitution is a restrictive document, it was not intended to be a document to be interpreted/applied as to what can forced out of the text or to be malleable to meet the desires of those in power. Its original intent can only be changed by amendment.
Respectfully,
Ronald L. Porter
Let me guess, you think you should have the authority to decide what is based on facts and what is based on a “capricious whim” By the way, the law doesn’t say he has to prove anything to the courts.
Thank you for all you do and for your dedication to truth, OUR CONSTITUTION
I am left to my own assumption to this article as well. In one of your radio shows I believe you stated that the Executive Order on refugees is not legal or needed because there is already a law in place. But if the law for US Refugee Act (which I don’t understand if it is considered a law but I understand you stated it isn’t a law) then where do we look to such cases in the Constitution or law legally based on the Constitution. Now getting blasted that the US Official (that’s all it says) is allowing 872 refugees in under hardship. So what is legal?
His power to deal with this refugee situation, comes from the fact that he is charged, by the Constitution, to protect it and our country from all enemies, foreign and domestic. Refugees are also not immigrants. They do not try to follow pathways to naturalization that others must follow. They want a shortcut. Many of these people want to start Sharia law and that is a direct attack on the Constitution. So the president is within his authority to make policy on this issue.
Well said
Actually, you need to read the immigration act… there is a clause that specifically grants the president the ability to limit any person or group from entering the country and his sole discretion…
His ability to limit immigration exists because it was EXPLICITLY LEGISLATED to exist.
How do we get these checks and balances back in place as it was originally intended? We can’t be allowing the black robe king and queen judges forcing us into an oligarchy with their over reaching. Who do we contact? I’m so upset to see how much power Congress has lost.
In times were harm can come to the nation the president does have the power granted by the constitution to suspend or halt immigration to establish safety for the citizens
Engineering or Law. I asked myself this so many times before college. I chose engineering mostly because of the purity and honesty of physical sciences. In engineering, there’s no need to have a person “interpret” what a “0” means or try and glean meaning from the word “is”. Hard to imagine the kind of world we’d live in, if Engineers “interpreted” the math, physics and science of design, instead of accepting the truth as it’s revealed.
Where is the legal definition of Refugee found? Argument goes off rail at the point of your introduction of that term. I would think immigration encompasses migration and therefore refugees. Please clarify.
not sure if you answered your first question, Does the President have authority over immigration?
please clarify
Did President Trump execute his powers lawfully? Did he do so in a manner that promotes security for the People of the United States?
Based on my research regarding applicable immigration laws, he did act accordingly to law to the discretion given by Congress.
The courts are not the final arbiters of law, nor can they change the law by opinion. The plaintiffs’ case against the executive actions of the President do not demonstrate harm to individuals, in fact to the contrary, they demonstrate the security of the People are secondary to the privileges of those who wish to come to America,
The courts failed to even cite the law, merely citing the feelings of the plaintiffs. The Courts are wrong.
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The fact of the matter concerning everything the president and congress and the courts do is that the majority of people perceive those three as the rule makers and that what they do is how it is. Even though this attitude is completely wrong, the fact that thousands of public officials go to their jobs each day and enforce not only the laws that have been enacted into positive law that are properly and legally enforced, but they also enforce the ones not enacted into positive law and those that are merely joint resolutions of congress and acts of congress and many others that are opinions written up by the several courts of inferiority as well as the SCOTUS. The only laws that are supposed to be enforceable by any authority are ones passed by congress and enacted into positive law. At least the ones at the federal level anyway. State laws and local laws and codes and such are a different beast altogether.
All executive offices at the various levels of government inherently have the power and the right to implement and enforce the laws created by their respective legislatures. “Implementation of law” has very real implications, such as:
1. Implementing laws with (inevitable?) ambiguities
2. Implementing laws with limited resources to do so
3. Implementing laws that may be contradictory to each other
In such cases, the executive branch has the power and the right to decide HOW such laws are implemented. Legislatures determine WHAT, but the executive branch determines HOW.
In President Obama’s case regarding DACA, he had every right to decide priorities in implementing immigration law given a finite budget and resources to do so. If Congress doesn’t like HOW a president implements a law, then it can change that law to more specifically define WHAT the intent of the law is, and put more constraints on the president’s HOW.
All this sophistry being spun to argue against the legality of Obama’s DACA executive order is utter nonsense. The US Constitution does NOT spell out HOW a president is to implement and enforce the laws of Congress. If a law needs clarification, then Congress must act to clarify. If a law is unduly ambiguous or conflicts with other laws, then the Courts can rule on the constitutionality of that law.
I see only two ways for the other two branches of government to change a president’s rightful decisions on implementing the laws: Congress can change the law in question, or the courts can rule a president’s implementation actions unconstitutional. Until one or the other of these possibilities comes to pass, the president’s decisions on HOW to implement the laws MUST be respected — and no political armchair philosophers (i.e., private citizens) have the right to claim otherwise, or that they know what is constitutional or not, until EITHER the Congress or the Courts do their part. That is THEIR job, NOT YOURS!
All this talk of sovereign private citizens is nonsense. No one alive today has ever entered into a contractual agreement establishing the US Constitution. We all inherited it as the supreme law of the land. We as individuals have NEVER entered into a social contract validating our governments. We live within a coerced framework determined by people long dead.
Don’t kid yourselves about “Liberty”. The only way to radically change the current state of affairs would be to somehow convince enough of your fellow citizens to call a wide-open, no-holds-barred Constitutional Convention, or to foment an armed insurrection. Anything else is just believing in a false ideological religion.
How can you teach anyone about the Constitution when you ignore it? The President absolutely has the right to do basically anything he/she thinks is in the best interest of the country. Period. It’s right there in The Constitution in black and white.
Sir, you confuse the office of the President with the throne of the King.