Napolitano: The Feds Violate their Own Laws (and the Constitution) with Border Separations
In the controversy surrounding Trump’s immigration policy—particularly the practice of separating the children of immigrants from their parents—one claim is made repeatedly by his supporters: immigrants have no right to complain about the treatment they or their children receive, because they’ve broken the law. Surprisingly, this assertion is made even by self-described libertarians.
Yet setting aside obvious problems about whether immigration laws are just in the first place, there are also legal questions to be raised about whether the federal government, according to its own grant of power, has the right to make and enforce laws regulating immigration at all. Judge Andrew Napolitano argues that it seldom if ever does. In an article from 2015, Napolitano, who can scarcely be classified as anti-libertarian or be accused of ignorance of the Constitution, makes a simple but powerful distinction about the limits of federal power: “the Constitution itself—from which all federal powers derive—does not delegate to the federal government power over immigration, only over naturalization.” Constitutional arguments for specific powers over immigration tend to focus on the Migration or Importation Clause. However, Ilya Somin further clarifies that this Clause originally referred to the slave trade, not to voluntary immigration, and is therefore a dead end.
Napolitano observes that the only other way for the federal government to justify (to itself at least) restricting the natural rights of persons or groups is if certain exceptional criteria are met:
The high bar is called strict scrutiny. It requires that the government demonstrate an articulated area of jurisdiction and a compelling state interest served by the least restrictive alternative before it can treat a person differently or uniquely because of his or her place of birth. A compelling state interest is one that is necessary to preserve life or the state’s existence, and it must be addressed using the least force and causing the least interference with personal liberty possible.
It’s hard to imagine how anyone could argue with a straight face that ICE or other federal agencies meet this standard of restraint (to say nothing of establishing an existential threat).
In addition to the general problem of federal authority over immigration, Napolitano also argues that the (apparently discontinued) child separation policy was in violation of current laws. As he elaborates in a recent interview:
[T]hey have chosen to take children away from their parents and confine them in a facility with other children… Now, this is a violation of a federal statute which prohibits confinement of children for more than 72 hours. It’s a violation of the law of every state along the border there, Texas, New Mexico, Arizona, [and] California, to take a child away from the parent except in the case of saving a human life. So, it becomes a form of child abuse. The federal government in my view is using the children as pawns, as a negotiating tool…The harm that is visited upon children is of such a psychological depth it might not be reparable for many years. Jeff Sessions knows this. The President must know this.
Now, the Constitution (etc.) is hardly the last word on law and morality, but proponents of limited government take it seriously and often invoke original intent to justify restricting federal power in other contexts. Immigration policy must not be granted immunity from such consistency. If Napolitano is correct, no justification of this sort remains for supporters of the current policy regime.