Immigration law

Statutes that regulate the entry of non-U.S. citizens into the United States.

The Supreme Court has less control over immigration law than over almost any other area of the legal system because congressional power over the immigration of aliens into the country is considered part of the nation’s sovereignty. During the first hundred years of U.S. history, there were few immigration laws to concern the Court. With the exception of the short-lived and controversial Alien and Sedition Acts of 1798, which gave the president power to deport immigrants judged to be dangerous, the federal government made little effort to regulate immigration. Congress did not even create a federal bureau to deal with questions of immigration until 1864, when it appropriated funds for a commissioner of immigration and a staff of five officials to assist immigrants with transportation and settlement problems.

Immigration law is largely the province of Congress, not the Supreme Court. In this 1924 photo, officers of the U.S. Public Health Service inspect passengers who have arrived from Asia.

(National Archives)

Despite its relative lack of involvement in questions of immigration, though, the Court did help lay the groundwork for federal control of the entry of aliens into the United States. As numbers of immigrants increased, states with large ports that served as points of entry began issuing their own regulations. New York, Pennsylvania, Maryland, and Massachusetts set health standards for new arrivals and taxed shipmasters. In 1876 the issue of state control of immigrants came before the Court in the case of Henderson v. Mayor of New York[case]Henderson v. Mayor of New York[Henderson v. Mayor of New York]. The Court ruled that state regulatory statutes covering immigration violated Congress’s power in interstate commerce. This judicial decision encouraged those interested in regulating immigration to seek federal laws that would replace the state statutes struck down by the Court. The Immigration Act of 1875 was a modest piece of legislation concerned with Asian laborers, but it did mark a historic turn because it signaled the end of the period of unrestricted migration to the United States.

Congressional Power

Congress replaced older state regulations by imposing a duty of fifty cents per foreign passenger on ships bringing in passengers from foreign countries. In the Head Money Cases[case]Head Money Cases[Head Money Cases] (1885), the Court held that this was a valid exercise of the right of Congress to regulate commerceCommerce, regulation of.

One of the earliest pieces of major immigration legislation was the Chinese Exclusion Act of 1882Chinese Exclusion Act of 1882. Chinese laborers had been arriving in the United States since 1849, when people in China received word of the California gold rush. Although Chinese workers had helped build the nation’s railroads, as the numbers of immigrants from China grew, hostility toward them also grew. The Exclusion Act banned most new migration from China. The Court upheld the right of Congress to exclude entire groups of people from entering the country in Chae Chan Ping v. United States[case]Chae Chan Ping v. United States[Chae Chan Ping v. United States] (1889) and Fong Yue Ting v. United States[case]Fong Yue Ting v. United States[Fong Yue Ting v. United States] (1893), citing the jurisdiction of the United States over its own territory as justification.

The right of Congress to act as a sovereign government has enabled Congress to bar the entry of certain groups of people, including convicts, prostitutes, and people who hold objectionable political beliefs. The Court has repeatedly upheld these exclusions. Although U.S. immigration law no longer discriminates on the basis of race, this has not been a result of any action of the Court but because of laws passed by Congress.

Immigrants on U.S. Soil

Deportation is the act of sending a noncitizen who has entered the United States, either legally or illegally, then been denied the right to remain, back to his or her country of origin. The Court officially recognized the right of Congress to enact deportation laws in the 1892 case Nishimura Ekiu v. United States[case]Nishimura Ekiu v. United States[Nishimura Ekiu v. United States]. The 1952 Immigration and Nationality Act, also known as the McCarran-Walter Act[]McCarran-Walter Act[MacCarran-Walter Act], made immigrants subject to exclusion and deportation for political activities, including membership in the Communist Party or Nazi Party. In Galvan v. Press[case]Galvan v. Press[Galvan v. Press] (1954), the Court upheld the deportation of resident alien Juan Galvan for having been a member of the Communist Party, even though it was a legal party when Galvan belonged.

Although the Court has recognized the right of Congress to establish and enforce immigration policy, it has sometimes restricted the immigration activities of the government when the immigrants are actually inside U.S. territory. In Wong Yang Sung v. McGrath[case]Wong Yang Sung v. McGrath[Wong Yang Sung v. McGrath] (1950), Carlson v. Landon[case]Carlson v. Landon[Carlson v. Landon] (1952), Marcello v. Bonds[case]Marcello v. Bonds[Marcello v. Bonds] (1955), Abel v. United States[case]Abel v. United States[Abel v. United States] (1960), and Kimm v. Rosenberg[case]Kimm v. Rosenberg[Kimm v. Rosenberg] (1960), the Court found that legal and illegal immigrants facing deportation do enjoy some constitutional rights, such as Fourteenth Amendment guarantees of equal protection under the law and Fourth Amendment freedom from unreasonable searches and seizures.

The principle of freedom from unreasonable searches and seizuresSearch and seizure has involved the Court in the enforcement of immigration law against illegal immigrants. In the case of Almeida-Sanchez v. United States[case]Almeida-Sanchez v. United States[Almeida-Sanchez v. United States] (1973), the Court ruled that officers of the Immigration and Naturalization Service could not use roving patrols far from the border to stop vehicles without a warrant or probable cause.

Further Reading

  • Baldwin, Carl R. Immigration: Questions and Answers. New York: Allworth Press, 1995.
  • Daniels, Roger. Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882. New York: Hill & Wang, 2004.
  • Helewitz, Jeffrey A. U.S. Immigration Law. Dallas: Pearson Publications, 1998.
  • Hing, Bill Ong. Defining America Through Immigration Policy. Philadelphia: Temple University Press, 2004.
  • Jacoby, Tamar, ed. Reinventing the Melting Pot: The New Immigrants and What It Means to Be American. New York: Basic Books, 2004.
  • Neuman, Gerald L. Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton, N.J.: Princeton University Press, 1996.
  • Williams, Mary E., ed. Immigration: Opposing Viewpoints. San Diego: Greenhaven Press, 2004.

Alien land laws

Alien rights and naturalization


Commerce, regulation of

Separation of powers