From Volume 89, Number 3 (March 2016)
Part I of this Article observes that, surprisingly, the Constitution provides little guidance on many of the basic issues in immigration law, such as which governmental institutions have the authority to create the rules regarding who may come to the United States, the limits on governmental power to exclude or remove noncitizens (if any), and the degree to which noncitizens within the United States are protected by the U.S. Constitution (if at all). Part I then describes how the Declaration of Independence explicitly and implicitly addresses some of these questions.
Part II explains how the Declaration’s espousal of universal rights, as well as its special solicitude for immigrants, has led the Supreme Court to conclude that the Constitution protects noncitizens from laws seeking to regulate their conduct. Part II focuses on the Supreme Court’s groundbreaking decision in Yick Wo v. Hopkins, in which the Court held for the first time that the Constitution applies to noncitizens living in the United States—a decision based, in part, on the universalist philosophy of the Declaration of Independence. A few years later, the Court extended Yick Wo’s rationale to provide constitutional protection even to those noncitizens found illegally in the United States. Yet during the same time period, the Court declined to adopt this expansive view of the Constitution when it came to determining noncitizens’ rights to enter and remain in the United States.
Part III argues that granting noncitizens constitutional protection from laws regulating their conduct is of little practical value when they have no such protection from laws restricting their ability to enter or remain in the United States. To give just one example, granting noncitizens the constitutional right of free speech means little when noncitizens may be deported for that same speech. Furthermore, as a matter of constitutional theory, it is hard to reconcile the universalist view of the Constitution’s scope with a membership approach that excludes noncitizens from that protection when it comes to laws selecting them for admission. If the Declaration’s universalist philosophy is to be taken seriously, the government’s selection process must be cabined by the same constitutional restraints that apply to laws that regulate the lives of citizens and noncitizens alike.
The Article concludes by noting how the plenary power doctrine is slowly eroding, albeit without ever being explicitly disavowed by the Court or the executive branch. Professor Hiroshi Motomura has observed that courts often strive to avoid interpreting federal immigration laws in ways that conflict with the Constitution, even though Congress is mostly free from constitutional constraints when legislating rules of admission. He labels these constitutional influences “phantom norms.” This Article argues that the Declaration’s universalism and its inherent embrace of the right to immigrate are phantom norms that also appear to be influencing the development of immigration law.