john mccain

State-Sponsored Visas Are Constitutional

Last week, Senator Ron Johnson (R-WI) introduced the State Sponsored Visa Pilot Program Act of 2017. Senator John McCain (R-AZ) is an official co-sponsor. If enacted, this bill would create a flexible state-sponsored visa system for economic migrants whereby states would regulate the type of visas and the federal government would handle admissions and issue the actual visas. Representative Ken Buck (R-CO) plans to introduce a companion version in the House in the near future. 

This is an innovative bill but we have encountered one persistent question from conservatives, libertarians, and others who are sympathetic to the idea of immigration federalism: Is a state-sponsored visa constitutional? 

The state-sponsored visa is perfectly consistent with the current migration system. The Johnson-Buck bill does not actually end federal control of migration but it merely creates a visa category whereby the states select the migrants through whatever processes they establish. The federal government is in full control of visa issuance and admission at ports of entry. Thus, states would be acting as sponsors on behalf of migrants whom they represent in their states in the same way that they currently sponsor foreign-born students at state universities and other workers in their capacity as employers.

In 2014, Brandon Fuller and Sean Rust authored a policy analysis for Cato that explored how a state-sponsored visa program could operate in the United States. They wrote a section addressing the constitutionality of such a program:

Historically, the Supreme Court has interpreted Congress to have “plenary power” over immigration, generally giving deference to the political branches of the federal government as an extension of the Naturalization Clause under Article 1, section 8, clause 4, which gives Congress the power “To establish an uniform Rule of Naturalization.”[1] Under current interpretations, this gives Congress the sole power to establish naturalization guidelines. However, Congress can also allow states to be involved in immigration policy in areas besides naturalization, such as managing a state-based visa within federal guidelines. Some immigration policies, with the exception of naturalization, can be partly devolved to the states within a range of powers permitted by the federal government.

The recent case of Arizona v. the United States, which decided the constitutionality of Arizona’s strict immigration laws, reiterates the point that states are allowed to participate in immigration policy and enforcement, but only within the scope permitted by the federal government.[2] In debating the case of Arizona v. United States, Peter Spiro, an immigration law scholar at Temple University’s Beasley School of Law, wrote, “[I]n Arizona, the Supreme Court constricted the possibilities for unilateral state innovation on immigration, both good and bad. That does not stop the federal government from affirming state discretion.” A state-based visa program does just that—allowing states to participate in the selection of immigrants under guidelines permitted by the federal government which is consistent with current interpretations of the Supremacy Clause and the plenary power of the federal government in the matter of immigration.

It is also important to note that U.S. law defines a nonimmigrant visa holder as “an alien who seeks temporary entry to the United States for a specific purpose,” and the federal government may set conditions in accordance with this purpose. For example, in the current immigration system a foreign entrant may be required to be attached to a singular petitioning employer under a number of employer-based non-immigrant visas, such as the H-1B. Like holders of employment-based visas, state-based visa holders would be nonimmigrants with a temporary right to live and work in the United States and an option to pursue permanent residency. As such, the state-based system is simply a variation on the condition being attached to the foreign entrant.

Republicans Go From Daddy Party to Baby Party

During the Cold War Republicans presented themselves as the Daddy Party, prepared to defend America in a dangerous world. They won an enduring electoral advantage on international issues. 

But the GOP lost that advantage with the end of the Cold War. The world is still dangerous, but not so much to America. Terrorism is a monstrous crime that frightens, but it does not pose an existential threat. And the United States far outranges any other power or group of powers militarily. 

Not the Change We Hoped For

express-coverBarack Obama first became a credible presidential candidate on the basis of his antiwar credentials and his promise to change the way Washington works. But he has now made both of George Bush’s wars his wars.

John McCain: Ever Confused, Always for War

Sen. John McCain has exhibited personal courage, but his geopolitical judgment is uniformly awful.  Over the last 30 years there has been no war or potential war that he has opposed.  In 2008 he wanted to confront nuclear-armed Russia over its neighbor Georgia, which started their short and sharp conflict.  It would have been ironic had the Cold War ended peacefully, only to see Washington trigger a nuclear crisis in order to back Georgia as it attempted to prevent the territories of Abkhazia and South Ossetia from doing what Kosovo did with U.S.

The Senate’s Interventionist Caucus and Libya

An interesting window into the politics of the Obama administration’s war in Libya may open this week, when Senators Kay Bailey Hutchison (R-TX) and Joe Manchin (D-WV) reintroduce a resolution expressing the sense of the Senate “that it is not in the vital interests of the United States to intervene militarily in Libya,” and calling on NATO member states and the Arab League, two parties who are directly threatened by the violence in Libya, to provide the necessary assets to the mission.

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