Immigration and the constitution

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    During the lecture “George W. Bush and Barack Obama” you say that there is an argument to be made that a president does not have to enforce laws that are unconstitutional. You praised the Obama administration for essentially letting the states decide their own drug policy by using prosecutorial discretion, but then right after that you criticize the Obama administration for deferred action for illegal immigrants saying that the president cannot make immigration law on his own, but I don’t think that the legislature was given that power either.

    I just went over Article I section 8 of the constitution and I don’t see any power given to the general government for regulating immigration. Naturalization is a power provided to them, but that is, as you know, becoming a citizen and being able to participate in elections etc. Immigration is not mentioned at all (except where slaves are concerned in Article I Section 9).

    Is it your view that the legislature has the power to restrict immigration, and if so where is that power found in the US constitution?


    Good question. The problem I can see is that Obama was making Executive law by his own decree, while technically, the states retain jurisdiction over immigration (though the federal government acts as though it is under Congress’ discretion, as though naturalization and immigration are interchangeable.

    Presently, states and municipalities can provide sanctuary, as in unfettered havens for illegal immigrants, but as we saw in Arizona, they can very easily face a lawsuit for “preemption.”

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