The US Constitution Only Delegates the Power Over Immigration or Asylum to the States

by P.A. Madison on July 28th, 2006

Pima County Attorney Barbara LaWall on behalf of herself and several other county attorneys and sheriffs, recently said a Arizona proposed immigration provision is an unconstitutional intrusion by the state into immigration policies, which are solely the purview of the Federal Government.

This struck me kind of odd because in order to come under the purview of the Federal Government the authority must be found delegated or, incidental to a delegated power granted to Congress under the US Constitution. There is a significant reason why Congress has no delegated power leading to jurisdiction under the US Constitution in matters of immigration or Asylum.

Prior to the adoption of the current Constitution, which was intended to correct for deficiencies found in the Confederation (hint: “to form a more perfect union”), States decided for themselves who could reside and later become citizens within their limits. This was simply a function of sovereignty each State enjoyed and had no desire to surrender to national government.

During the Constitutional Convention of June 16, 1788, George Mason asked if the new Constitution would secure and guarantee the rights the States then currently enjoyed. Said Mason:

But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction. Many gentlemen, whom I respect, take different sides of this question. We wish this Amendment to be introduced, to remove our apprehensions. There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States.

This clause has never been complained of, but approved by all. Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration that every thing not given is retained, it will be carried to any power Congress may please.

It was this very apprehension that we find the Ninth and Tenth Amendment under the US Constitution today. The Ninth and Tenth Amendments taken together provide for interpreting the Constitution while also defining the sovereignty of the republic.

The Ninth was intended to preserve all rights under existing state laws as of 1791, and those rights, which States might later decide to extend. The Tenth guaranteed to the States their ability to exercise their powers based on the sovereignty of the people to self-government. The Ninth Amendment looks to the past, the rights retained, or that will be retained by the States. The Tenth Amendment acts to prevent encroachment by the national government upon the States via the exercise of a non-delegated power.

Thomas Jefferson forcibly tells us what the States retained under the US Constitution in regards to immigration:

[A]lien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved, to the states, respectively, or to the people,” the act of the Congress of the United States, passed the 22d day of June, 1798, entitled “An Act concerning Aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

Because the States decided they would retain their own laws, customs, independence and sovereignty with the exception of what was surrendered, the Federal Government was left with no powers to meddle within the States. The Vermont Constitution of 1793 recognized citizens right to emigrate from state to state, provided the laws of the state accepted them. James Madison explained the entire compact this way:

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Chief Justice of the United States, John Marshall, said, in delivering the unanimous opinion of his brethren of the court in McCulloch v. Maryland, decided in 1819:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into into one common mass. Of consequence, when they act, they act in their States. … In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

Sovereignty over individual State immigration was never an object committed to national government.

Unlike the Federal Government, State governments claim broad general powers, and therefore, the question is never whether a power is granted for a State to exercise, but whether the power has been explicitly withheld from the State. The Federal Government was given specific national sovereignty over such things as war, peace, treaties (within the sphere of powers delegated), print money, define and punish piracies and felonies on the high Seas, make uniform rules of naturalization for foreigners who migrated to some State per State law, etc.

Because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congress no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.

It was always up to each State to monitor their own borders or protect its citizens from the wild Indians internally, and if things got out of hand, they could make application for federal troops to enter to combat any internal domestic violence. If one closely reads the U.S. Constitution, they will discover domestic concerns of the States were carefully shielded from federal interference.

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. When immigration of any kind became unwise the State had the full power to act on the subject (unlike today).

For example, the commissioner of the Wisconsin Labor Bureau discovered in 1886 after making inquires throughout the State that there was an overwhelming resentment against immigrants entering the state labor market. A year later, a bill was passed in both houses without a single dissenting vote to abolish the State Board of Immigration to end encouragement of immigration into the State.

Under our system of government, immigration by design works something like this: States decide who they desire to immigrate into the State, how many and under what terms and inducements. States could issue letters, travel visas or whatever to the immigrant to lawfully enter and pass through other States on his journey to the State who sought him.

This was the proper method; however, steamship companies learned they they could profit from European countries paying them to export their most undesirable citizens into this country. If ports of entries would pass laws to guard against this mass importation the companies would sue, claiming the State was interfering with national governments commerce.

State ports of entry can lawfully deny entry to anyone who is not authorized by any State to accept them. States have always protected themselves from the beginning against vagabonds and pauperism (public charge). The Constitution of Vermont of 1793 recognized “[t]hat all people have a natural and inherent right to emigrate from one state to another,” provided a State was willing to “receive them.”

Congress could attempt to pull some implied authority over the migration of people within the jurisdiction of a State through the Necessary and Proper Clause, but this would require finding a delegated power that can breach the sovereignty of the State to do so. The power to make uniform rules of Naturalization will be of little use for a number of reasons. The principle reason is that it is simply a power to make rules for giving or withholding citizenship to an alien already residing within a State under the lawful requirements of the State.

Consider for a moment that the power to make uniform laws over bankruptcy under any liberal interpretation provided no power for Congress to create bankruptcies within States.

Liberal construction of the Naturalization Clause is made difficult because it was introduced to the constitutional convention to specifically give the Federal Government the “exclusive right of declaring on what terms the privileges of citizenship & naturalization should be extended to foreigners.” Clearly then, it was never a power given over anything remotely dealing with the authorization of entry into the States but only deals with the citizenship aspect once they decide to seek citizenship after the migration to a State under the laws of the State, of course.

The Federal Government or the courts could claim immigration is an “incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it….”

The problem with this line of reasoning is that the U.S. Constitution by design greatly limited the sovereignty of the Federal Government, leaving the government to exercise well-defined sovereignty, while the rest was left to the States to exercise. Additionally, if the Constitution had left it up to the courts or government to say what might constitute an “incident of sovereignty” affecting the internal order of a State, then there would have been no purpose in providing for the making of uniform rules of naturalization. Congress could merely say naturalization (or even bankruptcy laws) were an incident of its sovereignty.

Madison had made it clear national sovereignty was limited and did not extend to within the States:

[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority is subject to them within its own sphere. In this relation, then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all objects.

Madison writing in the Virginia Resolutions, said, “there are powers exercised by most other governments, which, in the United States, are withheld by the people both from the general government and from the state governments.”

The U.S. Constitution granted the Federal Government sovereign power to make war, maintain armies, mint money, levy duties on imports, receive Ambassadors and other public Ministers, establish post offices, make treaties, etc. Nothing can be found that authorizes the Federal Government to exercise sovereignty over foreigners within a State as the original 13 colonies did not intend to leave the Federal Government with a blank check when it came to defining sovereignty.

Today the court uses its “plenary power” doctrine in order to avoid having to address how it is possible the States surrendered to the federal government exclusive authority over aliens coming and residing within State limits.

The Supreme Court has held at different times that if Uncle Sam desires to oust some State law, then the burden is on them to show the express authority to make the law under the Constitution, and where it had been expressly prohibited to the States to touch. Good luck finding any granted power over aliens within State limits while also finding where the States are forbidden to have any say in the matter. For Congress, or the courts to make some law that has no foundation in some enumerated object and call it a supreme law is nothing but usurpation, and deserves to be treated as such said Alexander Hamilton.

Chief Justice Marshall in McCulloch v. Maryland tells us Congress may only exercise powers conferred by the letter and spirit of the Constitution that cannot be transcended:

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

No doubt Marshall was laying down the same constitutional analysis as Hamilton had in regards to Congress exercising powers under the Constitution: “Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality….”

What might be an existing right belonging to a State? Anything that is neither delegated to Congress or prohibited to the States to touch. One will find nothing remotely implying the States surrendered their absolute power over determining who may enter and reside within their jurisdictions who were not citizens of the United States.

This is why Rep. John Bingham held during reconstruction that States conditionally had the absolute right to admit or expel anyone from their limits. The condition he argued, was States cannot deny entry of citizens of the United States no matter what color of their skin, but if alien, the States could under their Constitution forbid their entry or right to acquire property in the State. Likewise, he argued a State could not expel its own citizens without having committed some crime that called for the expulsion from the State.

Could Congress use its treaty making power to force States to submit to accepting other nation’s citizens? Chief Justice Taney in the Passenger Cases said it was not open to dispute that the federal government had no such authority under the Constitution to force States to suffer from the introduction of foreigners from other countries via its treaty making power, nor would the States be bound to submit to such an unlawful act of Congress:

The first inquiry is, whether, under the Constitution of the United States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it.

For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize or enforce.

I had supposed this question not now open to dispute. It was distinctly decided in Holmes v. Jennison, 14 Pet 540; Groves v. Slaughter, 15 Pet 449, and in Prigg v. The Commonwealth of Pennsylvania, 16 Pet 539. These cases decide that the States have the power to expel and exclude. There can be no concurrent power respecting such a subject matter.

The court has claimed immigration actually involves “foreign affairs” but never been able to explain how alien residency within State limits has anything to do with “foreign affairs” since it that is predominately a State affair affecting the State directly within its own jurisdiction.

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.)

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 noting 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 under commerce clause rulings.

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 compact that established our republican form of government.

What is really lacking for Congress is an exclusive authority to “exercise exclusive legislation” within the States that could open an avenue in exercising powers over the migration of people and residency within the States. Unfortunately for the Federal Government, our Constitution only provided this authority over the District of Columbia, federally owned land and no where else.

Many confuse early American immigration legislation as a sign Congress had always exercised absolute jurisdiction over the subject. This is plainly false because early legislation dealt with encouragement of immigration into the large territories that were not yet formed into statehoods with their own laws, courts and constitutions. In other words, Congress had complete monopoly over the territories under its jurisdiction.

During the nineteenth century Congress never attempted to legislate over immigration matters within the States because they recognized the Constitution gave them no power over forcing foreign migration into each of the State jurisdictions. Once the territories were carved up into States the Federal Governments control over immigration into the country decreased proportionately.

President Andrew Jackson said the “Constitution, which was established for the benefit of our own, not of a foreign people: if in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control.”

President Grant was sympathetic to the treatment of immigrants once they reached the shores of this country, but told the House in a memo that national legislation over the subject would be unwise because the Federal Government was prohibited from interfering with immigration matters within the limits of the States. Said Grant: “[R]esponsibility over immigration can only belong with the States since this is where the Constitution kept the power.”

Framer of the Fourteenth Amendment and Chairman of the House Judiciary Committee, Rep. John Bingham, reminded committee members that Congress were “limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits.” He further emphasized the States immigration powers could be exercised without any “question or limits placed on [the] reserved power from the central government.”

This all leads to several big questions for the U.S. Supreme Court: When did the States surrender their power over immigration to the Federal Government? Where can this surrender be found documented in the US Constitution? The judiciary is neither a legislative body nor does it have the authority to transfer sovereignty from one political body to another without either’s consent.

The great Chief Justice John Marshall reminds us the “Constitution of the United States is one of limited and expressly delegated powers which can only be exercised as granted, or in cases enumerated.” For Congress, there is no expressed or implied grant of power over the admission of immigrants to enter and take up residency within any State limits – no more than there is a power to instruct Tokyo to absorb one million refugees. As Jefferson would say of today’s laws over immigration, “is not law, but is altogether void and of no force.”

See also: Feds Argue Pre-Eminent Authority over Immigration

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50 Responses | Leave a Comment
  1. maeoligan says:

    @Jose: Are you an immigrant? Your spelling is phonetic (and atrocious!)

  2. \\ says:

    And The toilet that is Mexico is the American Taxpayers Fault How? I live in the Ghetto of Arizona and my neighborhood is 98% illegal Mexicans . They are a mean racist and a disgusting culture. They have no respect for anything including themselves

  3. Mutuelle says:

    In a letter to the city of LA, a member of Arizona’s power commission said he would ask Arizona utility companies to cut off the power supply to Los Angeles. LA gets about 25 percent of its power from Arizona.

  4. jc says:

    You might be the worst speller that I have ever seen. Please tell me that you are still in jr high?

  5. Seneca says:

    I just realized that perhaps we should jettison linkage of the act of crossing border illegally to “immigration” and go instead with illegal entry or trespass. That is what it is.

    It is a shame how the left is so adept at co-opting the language and using that to then frame the argument in their favor.

  6. sb0623 says:

    Jose: You are partially right – the Mexicans have ALREADY taken over without firing a shot. And they did it illegally. NAFTA was the biggest mistake Bush ever made. If you are here legally, then why is this such a big deal? The Cubans get sent home in the same boat they try go get here with. Why should it be any different with Mexicans that are in this country illegally? Should U.S. taxpayers have to pay social benefits for illegal workers who don’t pay federal taxes?

  7. Scott says:

    You are right, it can be a difficult place to live in (Mexico). However, a person with a 100k can move to Mexico and retire. The founders of the U.S. fought back against their oppressors. The citizens have failed to do that. Until they do, Mexico will never get better. It will still be run by the drug lords and corrupt government.

  8. Justlookingin says:

    I do not know how I can say this any simplier:

    It’s not about IMMIGRAION, IT’s about ILLEGAL immigration and breaking the LAW coming across the border without permission.

    Just as you have fences on and around your property, the US does have boundries and laws to protect it’s borders, just as you the home owner eith your fences around your property.

  9. RichieT says:

    The 10th amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. That clearly leaves immigration to the states. It was never specifically denied them

  10. Actually says:

    My god man, both your spelling and your thinking is atrocious.

  11. Jonathan2017 says:

    The Doors of the 50 states are open for any body to come in legaley, once We The People get the voter fixing fraud of the U S Congress out of the pictuer, then immegrants can not be used by congress to manipulate the the electorial peocess;( its about votes not elegales) the point is, congress has no authoruty to make “people” against the law if the power ( that belongs to the states is taken away from them ) then the issue goes away: and the immagrents may spead out in to the states. The States will then accept them threw the cetezen ship documentation and orentation, just the way it was set up in the first place. And thia is the answere to all the games the feds are playing. We need to get back to the origenal U S Constitution minus the slavery of course. Obviously a state that can not control its borders is no state at all, nor can it protect its cetezens. Thus the Foundes recognised the Right belongs to the states, and lets not find the states gulity before the may prove they are abel to handel this issue, like they did in the first place. It is up to you the People, stop fighting each other and put the Federal govt back in the box! When you fight each othere they win. Liberty or salvery, you decied.

  12. David Hereford says:

    “We the people” are now the journalist, of this nation. We must lay down our ambitions, and dreams of the “good life” and commit to governing ourselves for our children’s sake.

  13. Isadora says:

    In Reply to LILr: If Mexico is a bad place…complain to their Government. It’s not Americans fault.

  14. Isadora says:

    In Reply to douglas:

    Americans are proud. Prove they aren’t?

  15. Deewhite says:

    In Reply to LILr: Everyone, including author Madison, has missed the key point: where are the aliens going to settle? An immigrant by definition fills-up previously unsettled areas. An invader, on the otherhand, forcefully pushes-out the present inhabitannts and seizes the land. This is also true if the invader is assisted by third party force. For example, when policemen evict American citizens, sometimes imprisioning them or forcing them into shelters, to make room for aliens. Note that the U.S. Constitution makes such overt acts of war criminal: the high felony of Treason against the United States.

  16. LILr says:

    In Reply to LadyM: UMMM NO LADYM. Your the sell out. I want to see you survive a month in Mexico, trying to get a job, paying your bills to keep your home, and providing for your family. You have no idea how hard it is to live down there. The U.S. is heaven compared to what Mexico is.


    • artsydee says:

      If Mexco is poor it is their own fault not ours and we are fed up with them bringing their corruption, gangs, here not to mention they are the only race to come to this country who are to lazy to learn to speak english. Tired of hearing how we took this land from Mexico because there was no Mexico or Mexicans (which means mixed blood) just as there was no United States or Americns until in Mexicos case the spanish invaded and took lands from the Indains and the Spanish continued to spread and take more land under the Spanish flag and ruled it under Spanish law and Queen. The French then took it from Spain and rule it under French flag and laws. they then went to war over texas, etc. and they LOST! If you can’t get your history right you have no right to call others names for speaking the truth!

  17. Uh Me_Go says:

    In Reply to Jose Brown: Give them? No. Give ANY man, woman or child a place to come live in this country, if any state will take them. The state has the right to make citizens. Any and all races may come and work to build up the state. The more people there are, the more jobs that can be created to supply those people and the more goods that will be available for all. But remember, we must encourage production and services that can be utilized by the greater portion of the people as a whole to be more prosperous. There is no need for more bureaucratic job creation.

  18. Jose Brown says:

    The Mexicans will take over the good ole USofA and they deserve to. So called patriots, who are cowards, fear the Mexican and fear that he will take your job. What a cop-out. This is a country of immigrants, but laws and rules and prejudices have blocked the immigration of people who would be an asset to this country. Now they will come and claim what is rightfully theirs. The lands of the free will be claimed by the brave and fierce.

    • quercus454 says:

      Hey Jose, would you have such a view if your first name wasn’t Hispanic? Would you think that immigration laws were so bad, if the largest segment of illegal aliens were say of the Asian or Black race? I thought not!

  19. LadyM says:

    In Reply to douglas: And you sir are a liberal sellout and with people like you in this country that would give away what is most precious, citizenship, this country has no chance of surviving. I will side with American patriot every time over traitors like you!

  20. douglas says:

    In Reply to American Patriot: american patriot u are a big asshole…with looser like u america is not proud…

  21. Larry says:

    In Reply to JCH:

    Made a more explicit statement that said powers not declared are strictly withheld. I’d also placed more checks and balances on the court instead of leaving it to them in defining their own powers.

  22. JCH says:

    If you were in the position that the framers were in creating the Constitution, what would you do differently, what would you change about immigration????

  23. Tom Cloyes says:

    I have looked through Ohio’s Revised code, Administrative code, and its Constitution and have found nothing regarding immigration in any, nor did a search of the same produce results. My question is: living in Wayne County, Ohio, married to a Chinese woman, who has the proper jurisdiction to issue her a visa and subsequent Citizenship? Wayne County is without the US, and so I am not subject to its jurisdiction, but nowhere is there any information except at the USCIS/US State Dept. Should one file suit in the local Common Pleas Court for this, or petition the Ohio Secretary of State?

  24. Peter Hampton says:

    In Reply to Brett:

    The adoption of the Constitution was not an act to give the general govt. any new powers over the states as they possessed under the Articles of Confederation, but merely to add effect to the powers given to the national govt. so states could not overrule acts of congress. Foreign countries viewed trade treaties with Congress as weak because states could override the terms of the treaties. The lack of strong treaty powers lead to forming a new union.

    With the adoption of the Constitution a supreme division of defined sovereignty was created between states and congress, something lacking under the old articles. The sovereignty the states surrendered was the power to make war, peace, alliances and to regulate commerce with foreign nations (trade treaties).

    Power over state immigration is only an incident of sovereignty that can belong with the states because it was an object solely belonging to the states under the Articles of Confederation and was never surrendered to the federal govt.

  25. Brett says:

    why would you quote the articles of confederation? They are no longer in place because they were a weak form of government that did not work. You weaken your argument greatly by stating those.

  26. JimAZtec says:

    Christina Benson wrote: “The feds obviously need to coordinate and partner with the states, but ultimately consistent immigration and naturalization policies need to be set at the federal level.”

    Why? There can be no such thing as “consistent” immigration policies when it has become politicized on a national scale. Only the States can lawfully enact consistent immigration policies that reflect the reality of their own welfare and internal happiness. The framers well knew there could be no domestic tranquility if Congress was empowered over immigration policies within each state.

  27. JimAZtec says:

    Christina Benson wrote: “The basic fallacy of Madison’s arguments above is that there are countless ways that Federal immigration policy arguably furthers the national security and commerce clause powers invested in the Federal government not the states.”

    How does opening the political floodgates to immigration secure the United States from armed foreign invasions? National Security and immigration are totally unrelated with each other. Commerce Clause invested no positive powers with Congress to exercise within each State. This fact is well documented throughout the constitution.

    So we’re back to asking where does Congress get its claimed powers over immigration? All fingers point to corrupt and illegal Supreme Court rulings and not from any act of the people or a Constitution that had invested such important powers with neither Congress nor the Supreme Court.

    Ignoring the wrongs of the court will never make those wrongs a right over any length of time.

  28. This states’ rights argument has been tried unsuccessfully in many contexts over the years. The reality is that the federal government, and Congress in particular, have exercised vastly expanded powers in the last century in the name of the Commerce Clause (and by extension the Dormant Commerce Clause). Moreover, the Executive Branch plainly exercises national security powers, and the Bush admin has dramatically extended such powers post 9/11 relating to securing our borders. The basic fallacy of Madison’s arguments above is that there are countless ways that Federal immigration policy arguably furthers the national security and commerce clause powers invested in the Federal government not the states. Supreme court has upheld those powers in numerous contexts over the last 50 years of jurisprudence. Here is one of several interesting articles detailing some of the commerce clause rationale as to why Feds should have primary control over immigration:

    This research backs up what Suaiden commented below on 08/25/2007 re: what if the border states each pursued their own inconsistent policies and we were left with a patchwork of rules, causing substantial border security and economic impacts. The feds obviously need to coordinate and partner with the states, but ultimately consistent immigration and naturalization policies need to be set at the federal level.

  29. Lester says:

    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. When immigration of any kind became unwise for the State the State had the full power to act on the subject (unlike today).

    For example, the commissioner of the Wisconsin Labor Bureau discovered in 1886 after making inquires throughout the State that there was an overwhelming resentment against immigrants entering the state labor market. A year later, a bill was passed in both houses without a single dissenting vote to abolish the State Board of Immigration.

    So the states completely regulated immigration themselves after 1790? No one considered it a responsibility surrendered to the federal government? I am not aware of any constitutional conventions after 1789 where the states came together to surrender their authority over immigration matters to the feds.

    This has been a serious usurpation with serious consequences by the court and congress.

  30. American Patriot says:

    In Reply to jojo:

    There is nothing you can do. You are an illegal and you can thank your parents for that.” Rule of Law”

  31. jojo says:

    What can i do? I’ve been here for 14 years and have a 3 year old son. I came here with my mother and sister with a visa. I was only 6 when i arrived to the United States. I love this country, and I don’t want to be sent back. I work, go to school, provide for my son and my sisters. help me please.

  32. Native Floridian says:

    WE HAD no Immigration Problem Pre-Teddy Kennedy. Teddy Kennedy sponsored the Refugee Program in 1980. That hideous Program, which Pays groups called Volgaps..Catholic Charities, Lutheran Social Services..PER roam the world , find and bring Refugees to the USA is a disgrace and should be scuttled. They bring rough people here, always Third World People, often diseases..Like the Burma Refugees they brought this year..and will bring again this year and the 8,000 they dumped on Atlanta from Rwandia..where the Drug Resistant TB and HIV-AIDS thrives.

    AFTER THREE MONTHS..when these Volgaps groups quit raking in you money for RESETTLEMENT..they dump them, and go off to troll for some more People who don’t even know what a toilet is for..who are not religious or political refugees..bring them here..exempt from Medical tests..protected by Condi’ Rice’s State Dept. which worked hand in glove with Kennedy and the Idiots on his Refugee and Immigration Committeee……

    Only the State of New Jersey has had the guts to Ban Luthern Social Services and Catholic Charities. For Refugee Dumping. Bringing people they know will be burden on the people there..for a commercial reason.

    Dismantle the Refugee Program. Refrom Immigration. Stop voting for the same idiots who brought you these programs. Toss them out. Fire them. You have the power..come November.

  33. Bartolome M Cajas says:

    Just remember that the word,”migrant” means two different class of immigrants… legal and illegal. The former followed the rules to be able to immigrate, while the latter just did something…crossed the border or purposely stayed after his legal stay was due.

  34. P.A. Madison says:

    In Reply to Michael: I decided to simply omit the passage because if you noticed just above that paragraph I included its sought purpose when introduced to the convention. This I hope will prevent distraction.

    JimAZtec/Larry, I will incorporate some of your inputs as they will add to the argument I originally sought to highlight.

    If no one has any objection I will clean up some of these lengthy redundant posts in a few days.

    P.S. I hope to have a new post on Plyler v. Dow shortly.

  35. eaglesglen says:

    I concur most humbly with all that I have read on this web page.

    My quest relates more to traditional “rule of warfare’ 1700’s to date, and with time, the labor monopoly takeover by government as U.S. citizens are now defenseless against pirates or others.

    Yet we used to be able to conquer attackers (British, French, pirates (1600’s ““ 1700’s)) and sell each of them as property! We used to sell each of each of the captured and/or conquered for what is now about $245,00 U.S. Fed dollars today.

    No U.S. dollar (sterling?!) silver certificates any more? How?

    No exception to the “except” part to the U.S. Constitution 13th amendment to conquer attackers and sell them as property?

    Not to demean nor diminish any U.S. citizen; no person reading these contributions has any real world understanding and any real world currency estimate of the current U.S. Fed “tax or duty” value of a simple force of law contract known as the U.S. Constitution?

    My rule of warfare question.

    Rule of warfare, whether by conquering the French or British in the era of the 13 colonies, or the Indian’s siding on either side, or conquering the pirates (of the Caribbean) and selling the conquered persons to “life at hard labor” as “work tools” in the Caribbean for 10 pounds sterling (or equivalent) or in the 13 states (from Africa). Rule of warfare as applies to the “ËœArticles of Confederation and Perpetual Union” and the rule of warfare that the land be “infested by pirates” and the same price? The U.S. 13 states and the U.S. Fed undeclared “rule of warfare” by a tax or duty of “ten dollars” “upon each such (conquered pirate or other persons in today’s rule of warfare against pirates of identification per today’s “ten dollars” U.S. Constitution in 1789 and what is the doubling time of a tax or duty of that era? Years 1789 to 1808? Until the year 1808 to raise the U.S. Fed (dollars sterling silver? Like the British pounds sterling?) dollars “tax or duty’ to double that of “ten dollars”? Then in 1808 the U.S. fed raises the tax or duty to 20 dollars or the U.S. Fed labor monopoly takeover is not for the U.S. Fed to collect a full eagle (20 dollars) the U.S. Fed labor monopoly takeover no longer collects that amount and charges U.S. citizens the BIG COST OF GOVERNMENT (more as property of the U.S. Fed like sentiments of the colonists in the era of the British tea tax “party time” in Boston Massachusetts?) is about $245,000. U.S. Federal Government?

    You might have guessed that I am among other things 9th or 10th generation investor in the U.S.OF AMERICA. Family tradition, I don’t pay for pirates, I SELL PIRATES. Get my drift? What is the “rule of warfare”? U.S. Fed bologna?

  36. emmanuel d. kyriakakis says:

    when any president takes the oath of office he swears to uphold the constitution and to abied by it by deporting legal aliens because of their views.He basically is breaking the law and violating constitutional rights of people that have been in the country for 30,40,50, years legally.why has he not been impiched Nixon did a lot less,and got impiched.I think that pepleo are so fed up with huim that they don”t care any more./

  37. Larry says:

    Alien friends means those who are within a state by permission of the state and who are not taking up arms against the nation (enemies) on behalf of their country. Aliens within any state are a local domestic concern, something the U.S. Constitution stayed away from encroaching.

  38. Google Account says:

    It is interesting that Thomas Jefferson indicated that states have complete jurisdiction over “alien friends”. The term “alien friend” seems to have fallen into disuse but I assume that it was distinct from “alien enemy”–Jefferson clearly implies that the federal government does have some jurisdiction over “alien enemies”–although that wouldn’t preclude the states also exercising their own jurisdiction over “alien enemies”. It seems to me that to fully understand Jefferson’s comments we would need to know the definition of “alien friend” that he intended. Did “alien friend” simply mean an alien from any nation not formally at war with the USA? Or did Jefferson intend a more complex definition of “alien friend”? Would todays illegal aliens be considered “alien friends” or “alien enemies”? Entering the US illegally, especially when done en masse and with the tacit support of a foreign power in some cases, certainly doesn’t seem like friendly behavior. But perhaps by some strict definition of “alien friend” they do qualify. I think we need to know more about Jefferson’s definition of “alien friend” as it is clear that he imagined two kinds of aliens–“alien friends” and “alien enemies”–and the jurisdiction for dealing with each might differ.

  39. Larry says:

    Glitch said: “While the U.S. Constitution does not explicitly deny the states the power to regulate immigration, it is clear that the U.S. Constitution does delegate to Congress the power to regulate immigration after the year 1808.”

    That would make a viable argument except for one thing: The clause was inserted under section 9, powers prohibited to Congress. If there was going to be any implied power granted for congress to exercise then that would have been inserted under section 8.

    The clause has always been referred to as the slave trade clause. What the language simply referes to is the voluntary or involuntary importation of slaves. Yes, there were persons (white and black) who volunteered servitude.

  40. Glitch says:

    Mr. Eaglesglen did touch on the matter when he cited Article I, Section 9, Clause 1 of the US Constitution, which states:

    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 one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    The chief architect of this particular Clause during the Constitutional Convention was Charles Pinckney the delegate from South Carolina. While the debate chiefly centered on the importation of slaves, Mr. Pinckney explains that it was also intended to give Congress the delegated power over the migration of free persons.

    “In considering this article, I will detail, as far as at this distant period is possible, what was the intention of the Convention that formed the Constitution in this article.”

    “The term, or word, migration, applies wholly to free whites; in its Constitutional sense, as intended by the Convention, it means “voluntary change of servitude”, from one country to another. The reasons of its being adopted and used in the Constitution, as far as I can recollect, were these; that the Constitution being a frame of government, consisting wholly of delegated powers, all power, not expressly delegated, being reserved to the people or the States, it was supposed, that, without some express grant to them of power on the subject, Congress would not be authorized ever to touch the question of migration hither, or emigration to this country, however pressing or urgent the necessity for such a measure might be; that they could derive no such power from the usages of nations, or even the laws of war; that the latter would only enable them to make prisoners of alien enemies, which would not be sufficient, as spies or other dangerous emigrants, who were not alien enemies, might enter the country for treasonable purposes, and do great injury; that, as all governments possessed this power, it was necessary to give it to our own, which could alone exercise it, and where, on other and much greater points, we had placed unlimited confidence; it was, therefore, agreed that, in the same article, the word migration should be placed; and that, from the year 1808, Congress should possess the complete power to stop either or both, as they might suppose the public interest required; the article, therefore, is a negative pregnant, restraining for twenty years, and giving the power after.” “””” Charles Pinckney, House of Representatives (February 14, 1820, Annals 36:1315″”17)

    While the U.S. Constitution does not explicitly deny the states the power to regulate immigration, it is clear that the U.S. Constitution does delegate to Congress the power to regulate immigration after the year 1808. It is also evident by the congressional approval of the Texas State Constitution with the inclusion of the Bureau of Immigration that Congress has not prohibited the States from enacting their own immigration policies. Therefore, as a power delegated to Congress by the U.S. Constitution, and not prohibited by the U.S. Constitution to the States, both Congress and the States share this authority. This is not anything new, there are several powers delegated by the U.S. Constitution to Congress and not prohibited by the U.S. Constitution to the States; for example, taxes, or raising and maintaining militias, etc. Therefore, what Arizona and other States have done by instituting their own immigration policy does not violate the U.S. Constitution, but Congress does have the constitutional authority to prohibit such acts, if they so choose.

  41. Suaiden says:

    “Consider for a moment if California decided she wanted to have an open border policy and encouraged and welcomed 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.”

    The thought occured to me that the reason many “so-called” Constitutionalists ignore this line of argument is because they know that “immigrant drain” of resources as an argument against immigration is itself a sham. In New York City, a “sanctuary city” (and one of the few places where I think Bloomberg is acting in line with the Constitution, though he didn’t invent the policy), it is not our immigrants who drain federal resources except where the “spigot” is open, such as in hospitalization (many NYers do not have health insurance, and simply rely on NY law for receiving and getting billed for treatment), but our residents.

    And it does make loyal NYers out of some immigrants, “legal” and “illegal”. I know one young man who left the state on a road trip and got deported. He made it back about six months later. I don’t think he’ll be leaving the city again.

  42. Suaiden says:

    I would guess Mr. Eaglesglen is attempting to claim all non-Americans are subject to slave clauses so that they can apply to non-hostile nations, thus circumventing the problem of “friendly nations” (i.e. Mexicans).

  43. eaglesglen says:

    In this “Laws of Nations” inferior insignificant subcontract to the U.S.C. especially as U.S.C. Amendment 13 unconditionally confirms slavery in all its forms: importation, migration, MAKING SLAVES (“DUELY CONVICTED”). Slavery of the alien who breaks the law is UNCONDITIONAL as there is no exception to the “except” part of this U.S.C. contract for goods and services.

  44. Hurricane Dennis says:

    There’s no need to refer to a clause which was intended to regulate the importation of slaves and, consequently, has had no relevance after the year 1808. Art. 1, sec. 1, clause 10 authorizes congress “to define and punish… offenses against the law of nations. The entry into the U.S. by a known enemy of the U.S. or a rep. of an organization known to be inimical to the U.S. should be defined as an offense against the Law of Nations.

  45. eaglesglen says:

    Immigration per U.S. Constitution (U.S.C.) Article 1 Section 9 clauses 1-4 tax ((persons)) or duty ((property, slaves)) of up to $10 dollars.

    $10 U.S.C. is about $230,000. dollars U.S. Federal government today! U.S. Fed FAILED TO PRECLUDE CRIME, ILLEGAL ALIENS, ETC. BY FAILURE TO KEEP CURRENT DUTY FOR THOSE VIOLATING THIS ONLY ACTIVE TAX LAW OF THE U.S.C.? U.S. Fed also violates this law? U.S.C. Amendment 13, slavery of the alien who breaks the law is UNCONDITIONAL as there is no exception to the “except” part of this U.S.C. contract for goods and services.



  46. boyceavon says:

    I found this a page of information.

  47. Changed my mind. Saw that the article could be copied; will post copy with proper attribution.

  48. Excellent. Am going to post a link to your article on my blog.

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