Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power

56 Pages Posted: 4 Mar 2010

See all articles by Matthew J. Lindsay

Matthew J. Lindsay

University of Baltimore - School of Law

Date Written: Winter 2010


This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the plenary power doctrine was and remains the supposition that the regulation of immigration is always inherently related to the conduct of foreign affairs, and, especially, to national security.

By situating this radical yet extremely durable doctrinal transformation within its appropriate intellectual and political context, this Article seeks to denaturalize the “national security rationale” for immigration exceptionalism. It argues that the plenary power doctrine was borne of an urgent sense of national peril, the basic terms of which most contemporary policymakers, judges, and scholars would emphatically reject. Although the doctrine made its judicial debut in the Chinese Exclusion Case, its historical origins in fact lie largely beyond Chinese exclusion in a much broader contemporaneous critique of (mostly European) immigration. The late nineteenth-century architects of the plenary power doctrine believed that the unchecked immigration of economically degraded, politically inassimilable, and racially unfit immigrants had created a virtual state of national emergency. In response, the Court fashioned an immigration power adapted not to the regulation of labor, or economic dependency, or crime - issues that, then as now, characterize most immigration lawmaking - but rather to the defense of the nation against foreign aggression.

Although the immigrants upon whom this power was exercised were citizens of ostensibly “friendly” nations, policymakers and judges re-imagined them as enemy aliens. Through this process, the Court in effect invented the “immigrant” as a distinct, and distinctly consequential, legal construct.

Keywords: immigration, regulation, Congress, Supreme Court, plenary power doctrine, foreign affairs, national security, immigration exceptionalism, Chinese Exclusion Case

JEL Classification: K19, K39, K49, H56

Suggested Citation

Lindsay, Matthew J., Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power (Winter 2010). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 45, No. 1, pp. 1-56, Winter 2010 , Available at SSRN: or

Matthew J. Lindsay (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States


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