The structural question behind the immigration rule

The Fox News report tells us that more than twenty states have gone to court to block a Department of Homeland Security rule that would make it substantially harder for immigrants to obtain visas or green cards if they have used Medicaid or SNAP benefits. The lead is a policy disagreement. But I am less interested in the merits of the welfare question than in the constitutional machinery being engaged — and whether that machinery is being operated by the hands the Constitution assigned to it.

First, the assignment of power. Article I, Section 8 vests in Congress the authority to establish a uniform rule of naturalization. The framing of that clause was not accidental. Uniformity, and the power to define it, was placed in the branch most directly answerable to the people — not in an executive department that answers, at its apex, to a single officer. When an agency of the executive branch issues a rule that substantially expands or contracts who may lawfully reside here, it exercises what is, in its nature, a legislative judgment. The question is whether Congress genuinely delegated that judgment, and how far.

Second, the role of the states. Twenty states suing in concert is itself a structural fact worth noting. In Federalist No. 51, I argued that the division of authority between the national government and the states provides a double security to the rights of the people — each checks the other. States are not merely administrative subdivisions; they are, when they act in their sovereign capacity before a federal court, participants in the federal balance. Their suit is the mechanism working as designed, whatever one thinks of the underlying policy.

Third, the danger of the standing agency. What I would have called a standing army in peace — a body of permanent power, answerable to no immediate election, capable of acting with force on the lives of individuals — I would today recognize in the form of a large administrative agency issuing binding rules of general applicability. The danger is not the rule itself so much as the regularity with which consequential decisions of this kind migrate from the legislature into the executive apparatus, until the legislature becomes a spectator in its own house. (I mark this as inference applied from principle, not as a recollection of modern administrative history.)

Fourth, what the courts must ask. The bench, when it receives this suit, ought to press two questions before it reaches the policy: Did Congress, in the statutes governing immigration and public benefits, actually authorize DHS to expand the public-charge ground of inadmissibility in this manner? And if so, did Congress supply an intelligible principle limiting that delegation, or did it simply hand over a legislative blank check? These are the questions that preserve the separation of powers — not as an abstraction, but as the working mechanism by which free government is maintained.

I will not pretend to know the technical details of SNAP eligibility rules or the precise statutory text of the Immigration and Nationality Act as it now stands — those are matters beyond my era, and I defer on specifics to those who have read the current statutes closely. But the structural principle is durable: the body that sets the terms of membership in this republic ought to be the body most directly accountable to those already within it. When that function drifts permanently into the executive, the written compact is being quietly rewritten without the amendment process the framers required. That is the question twenty states have now placed before a court — and it is the right question to be asking.