Slavery and Immigration
Article VI, Clause 2 of the constitution, commonly known as the Supremacy Clause, provides that
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Under this provision, any state law that contradicts a properly enacted federal law is “preempted,” meaning that it is void to the extent of that conflict. Preemption can be “express,” such as where a federal statute says explicitly that state laws to the contrary are preempted. It can also be “implied,” when a court infers preemption from the context, although the federal law doesn’t say anything about it.
Implied preemption in turn comes in a couple of different flavors. There is impossibility preemption, where it is physically impossible to comply with both the federal law and the state law at the same time. There is obstacle preemption, when a state law is deemed to fundamentally frustrate the central purpose of federal law, even if it’s not physically impossible to comply with both. Lastly, there is field preemption, wherein federal law occupies the field, displacing all state laws on that subject regardless of whether there is any conflict.
Field preemption is an odd duck, because there is, in general, a presumption against preemption. Normally the Supremacy Clause does not require that state laws match, or even necessarily be congruent with federal law. Indeed, the federal government may not “commandeer” state governments by requiring them to pass consistent state laws or to enforce federal laws.
This is how, for example, criminal drug laws function. Federal law and the laws of all 50 states regulate controlled substances, but each does it differently. Indeed, many states have legalized pot, although it is still illegal at the federal level. There is no preemption because state drug laws don’t conflict with federal drug laws in the sense that it would be impossible to comply with both at the same time.1
Nevertheless, in Rice v. Santa Fe Elevator Corp., the court held in 1947 that in the immigration context, the “federal interest is so dominant that the federal system will be presumed to preclude enforcement of state laws on the same subject.” Thus, in Arizona v. U.S., the Supreme Court struck down an Arizona law relating to arrests of undocumented aliens that not only didn’t conflict with federal law, but actually purported to aid enforcement of federal immigration law.
The proposition that we need a uniform immigration policy set exclusively by the national government has obvious merit. But as I reviewed previously, the nation’s early history cuts the other way. During the country’s first century, it was the states and not the feds who were dominant in immigration. I suppose that if one is willing to concede that the constitution evolves with the times, as many originalists seemingly won’t, it’s possible that the federal interest in immigration became dominant over time as the US has been increasingly integrated into a global system characterized by mass migrations of people.
But we are putting the cart before the horse here, because the Supremacy Clause is not a grant of substantive power to the government, it only supplies a “rule of decision.” If the federal government has a power otherwise granted in the constitution, its exercise of that power precludes contrary state laws. But we still haven’t identified the textual grant of immigration authority in the first place.
I had dismissed the Foreign Commerce Clause as the source of immigration power, because international commerce normally refers to the free exchange of goods and services, not the migration of persons, across borders. But as Professor Heeren recently suggested, the Importation Clause, as originally understood, indicates a disturbing connection between immigration and “commerce” when the context of slavery is taken into account.
Chief Justice Marshall wrote in 1824 in Gibbons v. Ogdens, the granddaddy of Commerce Clause cases, in reference to the Importation Clause that
Migration applies as appropriately to voluntary, as importation does to involuntary, arrivals, and so far as an exception from a power provides it’s existence, this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, as those who pass involuntarily.
At the founding, it was supposed that the economic system of the south would be driven by the importation of enslaved persons working on plantations while the north’s would be by the migration of immigrants seeking employment. The odious deal struck by the Importation Clause was unrestricted migration of European immigrants for unlimited importation is African slaves (before 1808). In the Antebellum Period, southerners continued the association by referring to northern factories workers as “wage-slaves.”
And the dark relationship between slavery and immigration lives with us today, as Professor Heeren writes:
The central moral failings of slavery are to treat people like property and to do so based on their race. Frequently, immigration policy has replicated these problems, creating smooth pathways to status for White immigrants while relegating a disproportionately large number of immigrants of color to precarious work that bears many of the hallmarks of slavery.
Well there you have it. Federal immigration authority derives from the constitution’s Foreign Commerce Clause, by analogy to slavery. Like so much of the constitution, the deep logic of the immigration power returns us back to the nation’s original sin.
If federal law says you can’t possess marihuana and state law says you can, you can comply with both by not possessing it. It would only be impossible to comply with both if state law required you to possess it.