Immigration a right, or a privilege?

by Stefan Sandor

“Respect for moral obligations constitute the rightness of a right.”

Immigration is a privilege not a right. When we say that “we have a fundamental right to do such and such” we are invoking more than a mere right. We are invoking a right arising from actions and activities that are inseparable from the human existence and identity of our individuality. It is not merely about what we are free to do, but more about what we are substantively required to do in order to preserve our human existence and identity. Therefore, all unalienable rights are grounded in the obligations and responsibilities pursuant to human self-preservation. We, as humans, are obligated to fulfill these obligations, and every one of us has the right to fulfill those obligations without state interference, provided that the respective behavior is in conformity with the standard of action that constitutes the human existence and identity of each and every one of us. Respect for moral obligations constitute the rightness of a right. We shall call this the principle of moral rightness. There is nothing inherent in the action of coming to live permanently in a foreign country that suggests one has a fundamental right to do so, or that the foreign country has a moral obligation to receive the respective individual/s. Moreover,  since all individuals have a moral obligation to their own self-preservation when taken in the aggregate as a single unite, e.g. a nation, the principle of moral rightness is transferable to the whole, i.e. the sovereign nation. Thus, ad idem with the individual a nation has a fundamental right to preserve its existence and identity, even when it requires that it slams shut its door to immigration.  We can conclude that the right of a sovereign nation to exclude and alien is absolute and the acceptance of aliens is a privilege bestowed on them not a right by the receiving country.

Who has The Power to Receive or Exclude Aliens within a Nation?

“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.”

The power to receive or exclude aliens falls within the powers of the Executive and the Legislative branch. More specifically the power of Congress  “to exclude aliens from the United States and to prescribe the terms and conditions on which they come in” is absolute, being an attribute of the United States as a sovereign nation. “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, i.e. to a foreign power. The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory” (1). Moreover, the powers over foreign immigration is delegated through Article 1, section 8, clause 4, e.g.”to establish a uniform rule of naturalization,” to the Congress. Thus, not only does a sovereign nation have a right to exclude aliens simply by applying the principle of moral rightness to the nation as a single entity, being a fundamental sovereign attribute which is of a philosophical and political character and therefore subject only to narrow judicial review, but it is a power specifically vested in Congress by the constitution. Now how is the Executive involved.

The President must exercise the powers delegated to the executive branch, but he/she must also refrain from executing any powers not delegated by the constitution to the executive branch. Article 2, section 3 lists the powers delegated to the executive branch among them the clause that, “he shall take Care that the Laws be faithfully executed.” The president must “take Care” that these laws enacted by Congress be executed; that would include the uniform rules of Naturalization and Immigration. Among these rules are, 8 U.S. Code, section 1182 (f) and section 1187, which give the president specific powers over immigration.

The federal immigration law Section 1182(f), states that, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as

“President Trump was principally relying on his inherent constitutional authority, without any doubt.”

he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added).

Section 1182(f) plainly and extensively authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. President Trump was principally relying on his inherent constitutional authority, without any doubt. In fact, in doing so, he expressly cites Section 1182(f), and his executive order employees the same language of the statue, e.g. finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States.” There is no doubt President Trump acted within his constitutional authority.

Supreme Court Cases Cited and Precedents

Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindienst v. Mandel, 408 U. S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530–531 (1954), Justice Frankfurter for the Court wrote: “[M]uch could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens…. But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history,’ . . . but a whole volume…. [T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole for undocumented aliens, the Court avoided it, holding that statutes and regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the Government. Id. at 858. That there exists some limitation upon exclusion of aliens is one permissible interpretation of Reagan v. Abourezk, 484 U.S. 1 (1987), affg. by an equally divided Court, 785 F.2d 1043 (D.C.Cir. 1986), holding that mere membership in the Communist Party could not be used to exclude an alien on the ground that his activities might be prejudicial to the United States.