Immigration Enforcement: Constitution Sets Down Federal, State Powers

The U.S. Constitution sensibly allocates powers, rights, and responsibilities between our layers of government, with a limited but robust federal government authorized to deal with a few specific problems and strong state governments left with everything else. This prudent balance is also true of immigration — but when it comes to that issue, both sides of the political aisle seem increasingly willing to violate the Constitution, escalating this issue in dangerous ways.

The federal government has the generally acknowledged power over immigration (most likely under Article I, Section 8’s Laws of Nations clause). The states, under the Tenth Amendment, retain the right to pass laws that do not conflict with constitutionally authorized federal laws. Article II requires — not allows, but requires — that the president “take care that the laws be faithfully executed,” and congressional immigration statutes are incredibly robust (making the Biden administration’s approach to illegal immigration all the more appalling). But the federal government does not have the authority to force states to implement federal priorities — nor can states actively obstruct federal law.

About the Author

Sean Beienburg

Sean Beienburg is an associate professor teaching constitutionalism in the School of Civic and Economic Thought and Leadership at Arizona State University and the author of Progressive States’ Rights: The Forgotten History of Federalism (Kansas, 2024).

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Immigration and Customs Enforcement

The U.S. Constitution sensibly allocates powers, rights, and responsibilities between our layers of government, with a limited but robust federal government authorized to deal with a few specific problems and strong state governments left with everything else. This prudent balance is also true of immigration — but when it comes to that issue, both sides of the political aisle seem increasingly willing to violate the Constitution, escalating this issue in dangerous ways.

The federal government has the generally acknowledged power over immigration (most likely under Article I, Section 8’s Laws of Nations clause). The states, under the Tenth Amendment, retain the right to pass laws that do not conflict with constitutionally authorized federal laws. Article II requires — not allows, but requires — that the president “take care that the laws be faithfully executed,” and congressional immigration statutes are incredibly robust (making the Biden administration’s approach to illegal immigration all the more appalling). But the federal government does not have the authority to force states to implement federal priorities — nor can states actively obstruct federal law.