Seth Lipsky doesn’t necessarily disagree with President Obama’s idea of liberalizing American immigration policy. But Lipsky explains in a TIME magazine column why Obama is going about pursuing his goal in the wrong way.
This is one of the reasons we seceded from Great Britain. King George III had been interfering with immigration to the colonies. It was one of the complaints enumerated in the Declaration of Independence. The British tyrant, the Americans declared, had endeavored “to prevent the Population of these States.” For that purpose, they said, George III had been not only “obstructing the Laws for Naturalization of Foreigners” but also “refusing” laws “to encourage their Migrations hither.”
The articles of confederation that first bound the newly independent states failed to solve this problem. Each state set its own policy on naturalization, with the potential for chaos. Hence the founders, who gathered in 1787 in Philadelphia to write the Constitution, granted to Congress the power to “establish an uniform Rule of Naturalization.” They could have granted this to the President or left it to the states, but they assigned it instead to Congress.
So Obama, in threatening to act on his own, is playing with constitutional fire. It’s not that I object to his liberality on immigration. On the contrary, for years I was part of the Wall Street Journal’s editorial page. It reckons that it would be illogical to stand for the free movement of trade and capital absent the free movement of labor. It once called for a constitutional amendment saying “there shall be open borders.” …
… All that, though, is trumped by the constitution. It not only seats naturalization power in Congress but also gives it almost total sway. The founders discussed adding language relating to how long someone must reside in America before becoming a citizen. In the end they required of Congress only that its rule be “uniform.” They didn’t want the states feuding over this and setting competing policies. They wanted a united front to the world.
Nor, the record suggests, did they want the President setting policies on immigration and naturalization. There may be talk about Obama having presidential “discretion” in enforcing immigration laws, but the record of the Constitutional Convention makes clear where the founders wanted discretion to lie. “The right of determining the rule of naturalization will then leave a discretion to the legislature,” James Madison quotes Alexander Hamilton as saying.
