Power  /  Antecedent

Texas Is Trying to Upend Who Controls Immigration Policy

The federal government has long controlled immigration law—and for very good reason.

U.S. and Texas officials are at war over immigration and border control. The latest chapter came on March 27, when the U.S. Court of Appeals for the Fifth Circuit blocked a Texas law from going into effect, pending hearings on its constitutionality. The law makes it a crime for migrants to enter the state by crossing the U.S.-Mexico border without authorization. At stake is a critical question: Who controls immigration in the U.S.? 

Since the late 19th century, the federal government has claimed the power to control who enters the U.S. Once immigrants are in the country, however, local jurisdictions play a vital role shaping their lives—either by providing support and immigrant-friendly policies, or through their own anti-immigration restrictions and monitoring. 

Today, states like Texas are trying to blur the two areas of immigration policy, intruding on the power of the federal government to control the nation’s borders and to enforce federal immigration laws, with grave implications both for immigrants and for U.S. foreign policy. 

Before the Civil War and Reconstruction, Congress played almost no role in regulating the admission, exclusion, or removal of immigrants. Concerned with safeguarding slavery, the South would never have countenanced a federal government strong enough to control the movement of people into the U.S. and within or between the states. Only when slavery was abolished did the era of national immigration control get underway. 

Although Reconstruction was primarily concerned with addressing the aftermath of slavery, it had a major effect on immigrants of all backgrounds. The Fourteenth Amendment defined national citizenship for the first time, with birth on U.S. soil or naturalization as the two criteria. It became a powerful force for assimilating immigrants and their children, regardless of their background or status. It also extended rights of equal protection and due process to “persons,” not just citizens—including Asian immigrants, who remained barred from naturalizing. Ironically, however, it soon became clear that the newly expanded federal state created by Reconstruction could also be used to restrict immigration in a way that individual states could not.

In two cases decided in 1875, the Supreme Court unanimously ruled that controlling immigrant admissions to the U.S. was exclusively a federal matter. Allowing “a single State” to make determinations regarding entry and removal, the court added, would allow that State “at her pleasure” to “embroil us in disastrous quarrels with other nations.” Immigration, in other words, was a matter of national security.