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.”