American Immigration Law: A Comparative Legal, Economic, and Constitutional Analysis

• Author: Andrew Ikpoh - Richard J. Hunter, Jr.
• Position: Associate Professor of Economics, Seton Hall University, South Orange New Jersey - Professor of Legal Studies, Seton Hall University, South Orange, New Jersey
• Pages: 745-785

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AMERICAN IMMIGRATION LAW: A COMPARATIVE LEGAL, ECONOMIC, AND CONSTITUTIONAL ANALYSIS ANDREW IKPOH AND RICHARD J. HUNTER, JR.^*

This article deals with the economic, legal, and constitutional issues presented in the immigration debate, with a focus on congressional enactments and important Supreme Court pronouncements, precedents, and decisions in the broad area of “immigration law.” The article contains a comparative analysis to a discussion of the “Commerce Clause,” and an in-depth discussion of the concept of plenary powers under the U.S. Constitution. These topics are considered as a possible indication that the immigration debate, although framed as an issue of resolution for the federal government through the Congress and the executive branch, unless resolved in the near future, may devolve into a myriad of individual state solutions and the responsibility of state and local governments. The article also presents important demographic and economic data in order to establish the proper context for the discussion of the highly volatile issue of illegal immigration.

“We do not care where they come from, we do not care what language they speak, but an illegal alien is not welcome in Hazleton!” ¹

As the United States Congress continued to be mired in what seemed to be an interminable debate over a controversial proposal for “immigration ‘reform,’ on May 10, 2006, two men shot and killed a local resident, Derek Kichline, on a street in Hazleton, Pennsylvania.”²Both

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* Andrew Ikpoh, Associate Professor of Economics, Seton Hall University, South Orange New Jersey; Richard J. Hunter, Jr., Professor of Legal Studies, Seton Hall University, South Orange, New Jersey.

¹Louis J. Barletta, Mayor, City of Hazleton, Pa., Address to the Hazleton City Council (July 13, 2006) (discussing Hazleton’s stance on combating illegal immigration), available at http://www.hazletoncity.org/City_Council_Speech_July_13_2006.pdf. The chronology of the “Hazleton Case” may be found in Eric L’Heureux Issadore, Is Immigration Still Exclusively a Federal Power? A Preemption Analysis on Legislation by Hazleton, Pennsylvania Regulating Illegal Immigration, 52 VILL. L. REV. 331, 333–36 (2007).

²Issadore, supra note 1, at 333.

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assailants were found to be illegal aliens from the Dominican Republic.³

“The following day, [on May 11, 2006,] a fourteen-year-old boy, who was also an illegal alien, fired gunshots into a [widely-used] city playground.”⁴

Partly in response to these “two high-profile crimes,” on July 13, 2006, the city of Hazleton enacted the Illegal Immigration Relief Act Ordinance.⁵

As enacted, the original ordinance (Number 10) provided:

Any entity or any parent, affiliate, subsidiary or agent of any entity . . . . that employs, retains, aids or abets illegal aliens or illegal immigration into the United States, whether directly or by or through any agent, ruse, guise, device or means, no matter how indirect, and even if the agent or entity might otherwise be exempted from this section, or violates any provision of this Ordinance, shall from the date of the violation or its discovery, whichever shall be later, be denied and barred from approval of a business permit, renewal of a business permit, any city contract or grant as follows . . . .⁶

In addition, citing relevant federal law, Ordinance 2006-18 [City of Hazleton Illegal Immigration Relief Act] and Ordinance 2006-13 [Tenant Registration Ordinance] imposed fines on landlords who rented to illegal immigrants and suspended licenses of companies that hired illegals.⁷

Soon after the Hazleton Ordinance was passed, several other cities throughout the country enacted similar legislation.⁸

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³Id.

⁴Id.

⁵Id.

⁶Id. at 334 n.10 (quoting Hazleton, Pa., Ordinance 2006-10, § 4 (July 13, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-PA-0001-0003.pdf).

⁷Hazleton, Pa., Ordinance 2006-18, §§ 2E, 4A, 5A (Sept. 12, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-PA-0001-0010.pdf (referencing federal law, 8 U.S.C. § 1324(a)(1)(A)(iii), which prohibits the “harboring of illegal aliens”); Hazleton, P a . , O rd in an c e 2 0 0 6 -13, § § 6 (a ) , 7 (b ) (A u g . 1 5 , 2 0 0 6 ) , a va i la b l e a t http://www.smalltowndefenders.com/090806/2006-13%20_Landlord% 20Tenant%20 Ordinance.pdf.

⁸Issadore, supra note 1, at 334.

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I. CONGRESSIONAL POWER OVER NATURALIZATION AND CITIZENSHIP

Congress wields enormous plenary powers over the admission, exclusion, or deportation of aliens.⁹As a result, Congress may exclude aliens altogether, or prescribe the conditions under which an alien may enter the United States or remain in the country.¹⁰An alien is “any person not a citizen or national of the United States.”¹¹

Kleindienst v. Mandel¹²is an interesting fact pattern exemplifying the application of Congress’s plenary power. In this case, the Attorney General denied a temporary visa to a Belgian journalist, identified as a Marxian theoretician, whom the Graduate Student Association at Stanford University had invited to participate in academic conferences and discussions on campus.¹³“The alien had been found ineligible for admission under the Immigration and Nationality Act’s provision barring those who publish or ‘advocate the economic, international, and governmental doctrines of world communism.’”¹⁴The Attorney General declined to waive ineligibility, and based the decision on the alien’s _______________________________________________________

⁹See U.S. CONST. art. I, § 8, cl. 4; INS v. Chadha, 462 U.S. 919, 940 (1983); see also the Immigration Reform and Control Act of 1986, 8 U.S.C. §§ 1324a, 1255a (2006) (prohibiting the employment of illegal immigrants and providing methods for illegal aliens to “legalize their residence”). Congress had stated its explicit goals in enacting the Immigration Reform and Control Act:

The purposes of the bill are to control illegal immigration to the U.S., make limited changes in the system for legal immigration, and provide a controlled legalization program for certain undocumented aliens who have entered this country prior to 1982.

The bill establishes penalties for employers who knowingly hire undocumented aliens, thereby ending the magnet that lures them to this country. It also revises the procedures for the temporary entry of foreign agricultural workers under the H-2 program and provides permanent residence to certain aliens performing fieldwork with respect to perishable crops.

H.R. REP. NO. 99-682(I), at 45 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649, 5649–50.
¹⁰See U.S. CONST. art. I, § 8, cl. 4; Chadha, 462 U.S. at 940–01.

¹¹8 U.S.C. § 1101(a)(3) (2006).

¹²408 U.S. 753 (1972).

¹³Id. at 757–60.

¹⁴Id. at 755 (quoting 8 U.S.C. § 212(a)(28)(D) (1952)).

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unscheduled activities on a previous visit when a waiver had been granted.¹⁵The Supreme Court held that Congress had the plenary power to exclude aliens or prescribe the conditions for their entry into this country, and had “delegated conditional exercise of this power to the Executive Branch.”¹⁶When the Attorney General as the designee of the executive branch decides for a legitimate and bona fide reason not to grant a waiver, courts will not look behind that decision nor will courts weigh the decision against the First Amendment interests of those seeking to communicate with the alien.¹⁷

II. EXCLUSION AND DEPORTATION

An alien who seeks admission to the United States generally does so only on terms as Congress prescribes and authorizes. Thus, whatever procedures Congress establishes become, in effect, due process[_1]at least as far as the alien is concerned. The leading case is United States ex rel. Knauff v. Shaughnessy.¹⁸In this case, an American war veteran had married, with the approval of the U.S. Commanding General in Germany, a German-born woman, who was employed by the European Command and whose record was “highly praised by her superiors.”¹⁹However, when she sought to enter the United States under the War Brides Act,²⁰the

Attorney General, under the authority of wartime security regulations, excluded her—without a hearing—upon a finding that she was excludable under the regulations on the basis of information of a confidential nature, the disclosure of which the Attorney General had determined would be prejudicial to the public interest.²¹The Supreme Court concluded that “the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate . . . this function to a responsible” officer of the executive department—in this case, the Attorney General.²²

“The action of the executive officer under [a grant of] such authority is

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¹⁵Id. at 758–59.

¹⁶Id. at 769–79.

¹⁷Id. at 770.

¹⁸338 U.S. 537 (1950).

¹⁹Id. at 550 (Jackson, J., dissenting).

²⁰8 U.S.C. §§ 232–36 (1945) (repealed 1948).

²¹Knauff, 338 U.S. at 539–40.

²²Id. at 543.

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final and conclusive.”²³The Court added: “Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”²⁴In writing for the Court, Justice Minton noted that Congress normally “supplies the conditions of the privilege of entry into the United States.”²⁵However, since “the power of exclusion of aliens is also inherent in the executive . . . [authority] of the sovereign, Congress...