When Borders Follow You Home
The Federal Government Discovers a Power It Forgot to Write Down
ICE in Minneapolis and the Federal Power That Was Supposed to Stay Theoretical
The reports coming out of Minneapolis are the kind that end arguments by changing the subject. A woman dead in her car after an encounter involving ICE agents is not a debate prompt or a constitutional hypothetical. It is what happens when abstract theories of federal power are deployed in ordinary city streets. Cars are not borders. Minneapolis is not a port of entry. When immigration enforcement begins to resemble a police shooting, it becomes impossible to maintain the fiction that this is merely an administrative matter.
The public debate follows a familiar script. Supporters of aggressive interior enforcement insist that immigration is a federal responsibility, that Congress has legislated extensively, and that the executive branch not only may enforce those laws but must. Uniformity is invoked. Sovereignty is nodded at gravely. Necessity is offered as a constitutional solvent. States and cities that resist are blamed for forcing Washington’s hand: if locals will not help, federal agents must act alone, even if that means operating deep inside states that openly object.
Opponents respond that this approach corrodes trust, invites racial profiling, and turns civil immigration law into a roaming armed presence with little local accountability. They argue that sanctuary policies are not lawlessness but refusals to be commandeered. They note—correctly, and with historical support—that “just enforcing the law” is one of those phrases that reliably becomes uncomfortable in hindsight, and which never stand up to legal scrutiny.
Call me heartless if you like, but I’m not especially interested in the consequentialist arguments that rely on tragic incidents of protestors being shot, legal residents being aggressively arrested and detained until they could prove their innocence, or gun owners, lawfully carrying a firearm, being disarmed by federal agents, as having any bearing on the propriety —or lack thereof— of deploying armed federal agents into sovereign States.
The question that matters most is the one both sides largely skip: does the federal government actually have the constitutional authority to do this at all? Not whether it is effective. Not whether it is a necessity. And not even whether it polls well.
Simply whether that power even exists in the first place.
Modern immigration enforcement rests on an assumption so familiar it rarely gets examined: that the federal government possesses not only the authority to regulate immigration, but also the authority to enforce that regulation through routine, armed policing within the states. Legal analysis that takes constitutional structure and original meaning seriously challenges that assumption. Examining the text, founding-era practice, early commentary, and the later emergence of the plenary power doctrine reveals a federal immigration authority that has expanded far beyond its enumerated foundations.
Interior immigration enforcement increasingly resembles an exercise of general police power—precisely the power the Constitution reserves to the several States. The Tenth Amendment could not possibly be clearer about where the police powers lie. Its persistence rests less on constitutional legitimacy than on long-standing judicial tolerance.
Article I, § 8, Clause 4 grants Congress the power to establish a “uniform Rule of Naturalization.” The word “immigration” does not appear. This was not an oversight. Naturalization concerns the legal process by which a non-citizen becomes a citizen. It governs status, not location; allegiance, not presence. It involves forms, oaths, and time. It does not involve patrols, raids, detention facilities, or armed agents conducting traffic-stop-adjacent encounters hundreds of miles from any border. To say nothing of the recent evidence we have seen of ICE agents seizing the guns of lawfully carrying American citizens, exercising their natural right to keep and carry arms, wherever they go.
Regarding the clear distinction between naturalization and immigration, founding-era practice consistently reflects it. For decades after ratification, states regulated immigration directly. They imposed entry requirements, demanded bonds, restricted residency, and sometimes expelled newcomers they deemed burdensome. The federal government focused on citizenship and foreign affairs. No one thought this division strange. It was federalism operating as designed.
Treating the naturalization power as a general immigration power requires collapsing distinct concepts into a single, convenient authority. Originalism does not tolerate that kind of compression.
Just as important is what the Constitution does not say. There is no general power to regulate immigration as such. No authority to police mere presence. No grant of a federal police power over people living inside the states. That omission was deliberate. James Madison rejected the idea that the federal government possessed inherent authority over immigration by virtue of national sovereignty. Powers not delegated were reserved. Immigration regulation—distinct from naturalization—was among them. Thomas Jefferson agreed, repeatedly warning that necessity was not a substitute for enumeration.
These were not stray remarks. They reflected a shared understanding that the federal government lacked general authority over population movement within the states. Modern discomfort with that conclusion does not render it unclear retroactively.
So how did we get here? The short answer is judicial improvisation, later rebranded as doctrine.
The Plenary Power Doctrine
The plenary power doctrine is often treated as a constitutional given: the idea that the federal government has near-absolute authority over immigration, largely immune from meaningful judicial review. It sounds formidable. It is also remarkably flimsy once examined without ritual solemnity.
The first claim is that immigration power is inherent in national sovereignty. Because every sovereign nation must control its borders, the argument goes, the federal government must have whatever powers are necessary to do so. This is not constitutional interpretation; it is geopolitical intuition. The Constitution does not grant powers by implication from international norms. If it did, enumeration would be ornamental and the Tenth Amendment a sentimental flourish.
The second claim is that immigration falls under the purview of foreign affairs. This sounds sophisticated but accomplishes very little. Many subjects—crime, marriage, education, property—have foreign dimensions. They remain largely state matters. The power to negotiate treaties does not imply authority to patrol city streets. Foreign affairs power does not quietly smuggle in a domestic police power.
The third claim relies on the Migration or Importation Clause. That clause temporarily limited Congress’s authority before 1808. It did not grant a general power afterward. A limitation is not an authorization. Treating it as such is interpretive enthusiasm, not textual analysis.
The fourth claim invokes the Commerce Clause, at which point the argument begins to wobble. Mere presence is not commerce. If existing inside a state qualifies as interstate trade, then everything does, and enumeration collapses into performance art. Even the most elastic readings of the Commerce Clause eventually snap under that strain.
The final claim is the most candid: the federal government has done this for a long time; therefore, it must be constitutional. This is how unconstitutional practices become traditional. Duration does not create authority. Repetition does not amend text. If it did, the Constitution would be rewritten every budget cycle.
Even sympathetic jurists have acknowledged the doctrine’s weak footing. Justice Scalia conceded that Congress’s immigration authority rests on inference rather than an explicit grant. That is not a footnote. It is an admission that the doctrine survives by momentum rather than structure.
The plenary power doctrine persists not because it is well grounded, but because it is useful. Faced with political pressure, courts chose pragmatism over constitutional design. That choice may be understandable, in a grimly consequentialist sense. It is not binding on the text.
ICE, Minnesota, and the Cost of Pretending This Is Settled
What ICE does today bears little resemblance to administering the naturalization rule. It looks like policing. Arrests, detentions, surveillance, patrols, and the use of force within sovereign states—these are core functions of state authority. The federal government was designed to be limited, enumerated, and occasionally inconvenient. The Tenth Amendment was not added as decoration. It was a warning label.
When enforcement authority exceeds its constitutional limits, the consequences are not theoretical. They land on real people in ordinary places. If the federal government lacks authority to conduct general interior immigration enforcement, no amount of urgency cures the defect. Efficiency does not create power. Necessity does not amend the document. Executive directives do not transmute the absence of authority into its presence.
The question, then, is not whether immigration law should be enforced. It is whether it should be enforced this way, by this government, under this Constitution. The framers designed a system that slows power precisely when confidence is highest and patience is lowest. That design is often dismissed as impractical. Minneapolis suggests it may instead be preventative.
The Constitution requires consultation before enforcement becomes fatal. That insistence is inconvenient. It is also the point.
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Cartago Delenda Est
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