PostHeaderIcon Federalism and Immigration

This is why I dearly love debating and intellectual discussion on the internet. I learn so much in the process; and it keeps me from wasting too much time consuming repetitive news and commentary on current events, which are generally insignificant in the larger scheme of things. We have been kicking the subject of federalism around in a comment section over at E3Gazette. One of the participants said this:

Dave, immigration is specifically a matter for the national government. The Constitution gives Congress that power, exclusively as of 1808.

Since that did not resonate with my understanding of the matter, I asked Google what he was getting at. This led me to a marvelous resource named The Federalist Blog, which is just begging to be explored further by me. Specifically, I was directed to an eye-opening essay of considerable length entitled, “The US Constitution Only Delegates the Power Over Immigration or Asylum to the States,” originally posted two years ago. Reading the comment section, it appears to be a collaborative effort that was just updated again last month.

I promise that anyone confused over our Federalism and the matter of the sovereignty of our individual States, will lose some of the scales from their eyes by starting at the beginning of the entire fascinating read. It seems that for at least the first half of our nation’s existence, it was undisputed that all matters of immigration were handled by the States, not the Feds. The Feds could set the rules for “naturalization,” which is applying to become a U.S. Citizen after a period of residency in a State; but the States regulated for themselves who they allowed to become a resident or Citizen of their State. The above assertion on E3 is easily refuted with this passage:

The same Congress that had passed reconstruction acts after the civil war, including the 14th amendment, required rebel State Constitutions to conform to the US Constitution before being re-admitted into the Union. Texas, like other States, had elected to form its own immigration bureau for managing immigration within State limits. Article XI of the pre-approved Texas Constitution of 1869 read:

SECTION I. There shall be a Bureau, known as the “Bureau of Immigration,” which shall have supervision and control of all matters connected with immigration. The head of this Bureau shall be styled the “Superintendent of Immigration.” He shall be appointed by the Governor, by and with the advice and consent of the Senate. He shall hold his office for four years, and until otherwise fixed by law, shall receive an annual compensation of two thousand dollars. He shall have such further powers and duties, connected with immigration, as may be given by law.

Most all the States had their own “immigration commissioners” in a number of European countries before and after the adoption of the Fourteenth Amendment, seeking to encourage those persons who possessed certain needed skills to immigrate to their State…

Thus, States certainly did regulate their own immigration matters at least beyond 1869. Then, near the end, one will encounter:

Congress has no option of resorting to the already comically abused commerce clause in exercising any authority over aliens within the States as evidenced by the courts shift over the years in claiming national sovereignty gives them authority.

Early cases involving the landing of immigrants dealt with various tax schemes against ship owners or immigrants themselves, were ultimately ruled an unconstitutional intrusion with the regulation of foreign commerce. The logic the court used in these decisions was frail and weak, and consequently the rulings were wholly void of facts to support the majority opinion.

The reason the regulation of foreign commerce was inserted in the Constitution was to enable Congress to protect its primary source of revenue (imports) by denying to the States the power of imposing their own tariffs on foreign imports. On the other hand, the regulation of commerce between the States served no purpose on behalf of Congress but only served to protect the States against each other (one State imposing tariffs on another State to give the infringing States own commerce an advantage price wise.)

The is why James Madison said the the regulation of commerce among the States was not a “power to be used for the positive purposes of the General Government.”

The history of the regulation of commerce in this country demonstrates it had nothing to with the power of taxing but with protecting American industry through protective tariffs on articles of trade. This is why there are separate provisions found in the Constitution for generating revenue through taxes and not through the regulation of commerce.

Under Article 1, section 9 we find these words: “The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations not exceeding ten dollars for each person.”

Why was this inserted into the Constitution if immigration was, in the words of the court, an incident to the “sovereign powers delegated by the constitution”? It was inserted because there was no sovereignty invested in Congress over the voluntary or involuntary migration of slaves, and also, it was doubtful whether Congress could impose a tax to prevent such importation as it wouldn’t be an impost.

It was never disputed the clause only acted as a limitation and not as a recognition of a broad hidden power.

There was nothing the court could find in the Constitution to justify their ruling that a State imposed tax on immigrants or the ships carrying them had anything remotely to do with the regulation of commerce. And the court would had been just as foolish to argue such a tax was a tax on imports or tonnage when Congress never before attempted to impose a tax penalty on people entering a State from anywhere. Only States did such a thing since the authority was exclusively retained by them to do so.

What is significant with this commerce discussion is that current judicial thinking in regards to federal immigration powers is substantially founded on commerce clause holdings.

Consequently, early waves of immigrants into this country were not the result of any acts of Congress or any State, but acts of the United States Supreme Court in denying the States the right to penalize the commercial importation of immigrants by commercial passenger companies for profit.

As one might suspect, Congress has no constitutional authority to issue green cards to immigrants either. The States are the only authoritative entities that can issue green cards and offer residency within their limits. In a sense, there really is no such thing as a “legal immigrant” as a result of acts of Congress because Congress has no legal basis to make anyone a legal resident within the States – only the States do. Some might be alarmed to think the Federal Government could have no control over who enters or resides within a State, but really if our Constitution upheld and the principles of our republican form of government is followed, current problems associated with absorbing millions of immigrants would be limited.

Consider for a moment if California decided she wanted to have an open border policy, encourage and welcome millions of immigrants from Latin America to immigrate. California could then issue resident cards, make rules and regulations governing its foreign population, and most importantly, be stuck with all the costs because the Federal Government really would have no authority to raise and spend tax dollars to support California’s foreign population (another non-delegated power). Wouldn’t take long for Californians to begin questioning whether an open border is a good thing.

Consider also California would have no way of relieving itself of its own internal generated burden because other States could constitutionally refuse non-citizens from residing within their limits, making it harder for California’s self-inflicted woes to migrate to other States. California would then be forced to withdraw the privilege of residency to foreign immigrants within the State – forcing the State to enact responsible laws governing foreign residency.

Congress then could apply checks upon California through naturalization rules, such as limiting the number of citizens to be naturalized and other conditions. Our form of government really would work well for us if Congress and the courts would let it work as intended under the great social compact in which established our republican form of government.

Utterly fascinating. Thus, I reckon that I can now go back to E3Gazette and report that the comment that sent me on this quest, has it exactly backwards! ◄Dave►

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