The Federal Role in United States Immigration

The Federal Role in United States Immigration

The United States Constitution does not define a federal power over immigration, yet courts have deemed it a “plenary power” of a sovereign nation. United States immigration law has developed extensively, often free of judicial review.


3 - 12


Social Studies, Civics, U.S. History


US Border Patrol Processing

The U.S. Constitution is unclear about the role of federal authority on immigration. Over time, immigration policy has varied largely from relatively open to restrictive. Here, customs and border patrol at a San Diego crossing process asylum seekers.

Photograph by Mani Albrecht
The U.S. Constitution is unclear about the role of federal authority on immigration. Over time, immigration policy has varied largely from relatively open to restrictive. Here, customs and border patrol at a San Diego crossing process asylum seekers.
Leveled by
Selected text level

The United States Constitution does not define a federal power over immigration. However, courts have considered it an authority that nations possess. United States immigration law has developed extensively in the last 200 years, often without being reviewed by the judicial system.

The Constitution creates a government of specific powers, meaning the powers of each branch of government are listed and detailed. The Constitution states that Congress has the power "(t)o establish a uniform Rule of Naturalization … throughout the United States." Thus, the Constitution gives Congress the power to determine which foreigners can become citizens, and under what conditions. The Constitution, however, is silent about immigration. That is, the federal government is not explicitly granted a general power to exclude or remove noncitizens from the United States. Nevertheless, the courts have allowed the federal government to exercise such a power.

Congress acted on immigration as early as 1798. These actions took place as the United States was about to go to war with France. New laws allowed the president to imprison or deport people who had immigrated illegally, and who were considered dangerous to "peace and safety" (Alien Friends Act of 1798). It could also apply to citizens of a nation with which the United States was at war (Enemy Alien Act of 1798). It also increased the residency requirement for naturalization from five to 14 years (Naturalization Act of 1798).

Still, for most of the nation's first century, the source of Congress' power to act on immigration was not relevant, since immigrants were allowed in without restriction. However, in 1875, Congress barred the immigration of convicted criminals. In 1882, it forbade immigration of people who were very poor. It also blocked those with mental illnesses or disabilities from immigrating.

Court Says a Sovereign Country Has a Right To Regulate Immigration

Also in 1882, Congress passed the Chinese Exclusion Act. This law kept Chinese people from immigrating to the U.S. In the legal arguments over this law, the Supreme Court began to clarify a basis for federal power to control immigration. In that and other cases that followed, the Supreme Court has held that the power to exclude people who have immigrated illegally is not explicitly set forth in the Constitution. Instead, it is a power rendered by an "incident of sovereignty." That is, it is the country's right to regulate immigration.

In Chae Chan Ping v. United States, 130 U.S. 581 (1889), the Supreme Court stated:

"That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.

"If it could not exclude aliens, it would be to that extent subject to the control of another power …"

In Fong Yue Ting v. United States, 149 U.S. 698 (1893), the Supreme Court further held that a nation has the right to expel foreigners if they have not yet been naturalized. This right is "as absolute and unqualified" as is the right to forbid people entry. The Supreme Court also ruled that deportation is an exclusively federal power that individual states cannot exercise.

Court Gives Congress "Plenary" Power

According to the Supreme Court, lawmakers in Congress have the primary responsibility for regulating immigration. This power is considered "plenary," meaning the courts have little oversight of immigration laws passed by Congress. Still, the Court has indicated that the plenary power is subject to constitutional limits.

Since the 1880s, Congress has exercised its plenary power extensively. In the 1920s, immigration was based on a quota system. The number of immigrants allowed was limited based on how many immigrants from a nation are already in the U.S., based on past U.S. census figures. As a result, immigration was higher from Northern and Western Europe than other areas of the world.

Today, the federal power over immigration is set forth in the Immigration and Naturalization Act. As originally enacted in 1952, this law has maintained certain exclusions. It also adjusted the national origins quota.

However, in 1965 Congressional amendments eliminated national origin quotas. Instead, the law emphasized family reunification. In other words, the immigration system prioritized immigration of family members of those already here. Amendments that followed in 1986, 1990, and 1996 granted partial amnesty to immigrants who had entered the country illegally, which increased levels of immigration. The Patriot Act of 2001 toughened background checks for admittance to the United States.

Historically, the United States has been the global leader in resettling refugees. A refugee is defined as an individual outside his or her country of citizenship who is unwilling to return because he or she feels threatened there. That may be because of their race, religion, or even political opinion. The United States consistently has taken in more refugees each year than the rest of the world combined.

U.S. policy on immigration has shifted at various times between open admissions and greater restrictions. Some of this confusion has been linked to the unclear constitutional basis for federal authority over immigration. The Constitution does not exactly set forth which branch of government is in charge. Therefore each branch has, at various times, attempted to assert its authority.

Media Credits

The audio, illustrations, photos, and videos are credited beneath the media asset, except for promotional images, which generally link to another page that contains the media credit. The Rights Holder for media is the person or group credited.

Tyson Brown, National Geographic Society
Freddie Wilkinson
Production Managers
Gina Borgia, National Geographic Society
Jeanna Sullivan, National Geographic Society
Program Specialists
Sarah Appleton, National Geographic Society, National Geographic Society
Margot Willis, National Geographic Society
Clint Parks
Last Updated

October 19, 2023

For information on user permissions, please read our Terms of Service. If you have questions about how to cite anything on our website in your project or classroom presentation, please contact your teacher. They will best know the preferred format. When you reach out to them, you will need the page title, URL, and the date you accessed the resource.


If a media asset is downloadable, a download button appears in the corner of the media viewer. If no button appears, you cannot download or save the media.


Text on this page is printable and can be used according to our Terms of Service.


Any interactives on this page can only be played while you are visiting our website. You cannot download interactives.

Related Resources