Deporting Illegals: The 10th Amendment and Sanctuary States
“Fat, Drunk, And Stupid Is No Way To Go Through Life...” (Dean Wormer, Animal House)
A friend informed me that some officials in Connecticut are claiming the 10th Amendment prevents the federal government from interfering with their ‘sanctuary’ status and asked my thoughts. So, I thought I would make a short answer long and write an article.
You may find it hard to believe, but people claiming the 10th Amendment (states’ rights) prevents federal authorities from removing non-U.S. citizens from sanctuary states is as unique as it is wrong. In fact, you could only make that argument by ignoring the rest of the Constitution, turning a blind eye to American history, and discarding 135 years of Supreme Court cases. Well, that or you could just make stuff up.
It’s true the federal government only has the authority granted to it by the Constitution and the 10th Amendment reserves all other rights to the states.[1] However, the Constitution, as interpreted by the Supreme Court, grants the federal government the sole authority to regulate immigration.
Where in the Constitution does it state the federal government has the authority to regulate immigration you ask? Well, Article I, §8, cl. 4 provides Congress the authority “To establish a uniform rule of naturalization…throughout the United States.” And Article I, §8, cl. 18 grants Congress the authority “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers…” Ah, but you say these two clauses don’t say anything about immigration, only naturalization. That’s true, but that’s a thin straw to hold onto, especially in light of Marbury v. Madison (1803), American history, and that 135 year unbroken string of Supreme Court cases I mentioned earlier.
Let’s start with history.
Long before the Supreme Court weighed in on the issue of immigration, the federal government implicitly interpreted the Constitution as providing Congress the power to regulate immigration – throughout the U.S.
In 1798 Congress passed, and President Adams signed, four laws that became known as the Alien and Sedation Acts of 1798.[2] The very first one was titled “An Act Concerning Aliens” and provided the President the power to expel non-U.S. citizens from the country.[3] It should be noted that this occurred only ten years after the Constitution and seven years after the Bill of Rights were ratified, a time in which many of the Founders were still serving as elected officials. In fact, John Adams was the President, Thomas Jefferson was Vice-President, James Madison was a member of Congress until 1797, and George Washington had just left office the year before.[2]
To be sure, these laws were highly controversial and at least two would undoubtedly be ruled unconstitutional today. However, the Act Concerning Aliens, with the exception of the part allowing deportation without a hearing (it violates the 5th Amendment’s due process clause) would be upheld as constitutional today.
Another early immigration law enacted by Congress was the Chinese Exclusion Act (1882) which banned all Chinese immigration to the U.S. for ten years.[3] In Ping v. U.S. (1889) the Supreme Court upheld this Act, but of more import, Ping would become the first in an unbroken string of Supreme Court cases covering 135 years recognizing Congress’ power to regulate immigration throughout the U.S.[4]
But that begs the question you say! The question is not whether Congress can prevent non-U.S. citizens from entering the U.S. Instead, the question is whether the 10th Amendment prevents the federal government from removing non-U.S. citizens in violation of state law. The short answer to that question is no, the 10th Amendment is not violated by the federal government removing non-U.S. citizens from any state regardless of state law.
In 1803 the Supreme Court decided Marbury v. Madison which established the Supreme Court as the supreme authority on constitutional interpretation. Many criticize the reasoning in Marbury, and it is true that there is scant authority in the text of the Constitution to rest this holding on. However, in the 221 years since Marbury was decided it has not been seriously questioned, let alone challenged. So, for better or worse, whether you like it or not, the Supreme Court is the authority on interpreting the Constitution. We can argue whether the Court is right or wrong in their interpretation of the Constitution. What we can’t argue, at least not honestly, is whether the Supreme Court is the final authority on what the Constitution means.
In accordance with Marbury, the Supreme Court has interpreted Art. I, §8, cls. 4 & 18 as providing Congress authority to regulate not only naturalization, but also immigration. On occasion, the Court has also found Congress has that power through the Foreign Commerce Clause (Art. I, §8, cl. 3); the government’s foreign affairs powers (Art. II); and by virtue of being a sovereign nation. [5] What’s more, the Court has found that Congress’ power over immigration is “plenary,” – meaning it is “full or complete…absolute, unqualified.” The only limitation on this power is its use must comport with the Constitution.
Those making the argument that the 10th Amendment prohibits the federal government from removing non-citizens in violation of state laws must also ignore the supremacy clause (Art. VI, Clause §2). The Supreme Court has consistently held that state laws that conflict with federal immigration laws are invalid.[6]
In summary, the Constitution, as interpreted by the Supreme Court, grants Congress the power to remove non-U.S. citizens from the U.S. regardless of where they are located and regardless of state law. Since the Constitution grants this power to Congress, the 10th Amendment is not relevant to the issue. Those who argue otherwise are being intellectually dishonest.
The next question is whether a state can refuse to assist the federal government in enforcing immigration laws. Yes, yes, they can. In Printz v. United States (1997) the Supreme Court held that the federal government cannot mandate that a state enforce federal laws or regulations. What states cannot do is interfere with federal efforts to enforce federal laws, including federal immigration laws such as 8 USC §1324.
Additionally, under 8 USC §1373 states cannot prohibit their law enforcement agencies from providing information to the federal government concerning violations of law – including immigration laws.[7] Though there are no criminal sanctions associated with violating this statute, in his first administration Trump threatened to us it to deny federal funding to sanctuary states and cities that violated the statute. The Supreme Court has not weighed in on this issue. However, four appellate courts have.
The 9th Circuit in Francisco v. Trump (2018); the 3rd Circuit in Philadelphia v.Attorney Gen (2019); and the 7th in Chicago v. Sessions (2018) upheld injunctions prohibiting the withholding of funds by the Trump administration for violating 8 USC §1373. However, the 2nd Circuit in New York v. United States (2020) ruled the opposite and held the federal government can withhold federal fundings to sanctuary states and cities who ignore that statute.
Given this ‘circuit split’ I expect the Supreme Court will weigh in on this…if the issue is raised again. However, until the Supreme Court does, federal funding cannot be cut off to states who are within the jurisdiction of the 3rd, 7th, and 9th Circuits for refusing to provide information to the federal government. However, those states within the jurisdiction of the 2nd Circuit can have their funds withheld. Unfortunately for the officials in Connecticut, they fall under the jurisdiction of the 2nd Circuit, and therefore, they can have their funds withheld.
[1] Though this is black letter law, the Supreme Court has interpreted the commerce clause (Art. I, §8, cl 3) so broadly that it is on the verge of, if it has not already become, the exception that swallowed the rule. However, that is a discussion for another day.
[2] Jefferson and Madison were adamantly opposed to this Alien and Sedation Acts, but neither they, nor anyone else, challenge it in any court.
[3] In The Act was extended several times until 1904 when it became permanent. In1924 the Chinese Exclusion Act was replaced with the Johnson-Reed Act which placed quotas on all nationalities, except immigrants from Asia – regardless of their nationality- were all denied entry into the U.S. These restrictions remained in effect until 1943 when Congress allowed 105 Chenese immigrants per year to enter the U.S. These restrictions were subsequently fully repelled.
[4] Also see Shaughnessy v. U.S. ex rel. Mezei (1953)(an “alien's right to enter the United States depends on the congressional will, and the courts cannot substitute their judgment for the legislative mandate”); Kleindienst v. Mandel (1972) (reaffirming Congress’ plenary power to exclude aliens or prescribe the conditions for their entry); Mathews v. Diaz (1976) (Congress has the aurthority to deny benefits to aliens, regardless of whether they are in the U.S. legally or not); Bouarfa v. Mayorkas (2024) (courts do not have the authority to determine the validity of a marriage to an alien, Congress granted that authority to the Department of Homeland Security)
[5] See: Toll v. Moreno, 458 U.S. 1, 10 (1982); U.S. ex rel. Knauff v. Shaughnessy (1950); and Ping v. United States, (1889).
[6] See: Arizona v. United States (2012) (federal law preempts state law if the state law is either complementary to or a hindrance to federal immigration law).
[7] Though this statute has been the subject of extensive litigation, no court has held it unconstitutional.
If any state official attempts to stop the feds from removing the aliens, they could and should be arrested and charged with a felony for interfiring with the federal gov from doing its official duty.