Immigration and Federalism
Discussing Texas’ SB 41 on the Amicus podcast last week, Lisa Graves of True North Research asserted that
The constitution, you know, is quite clear that the federal government has the power over immigration. It’s express in the constitution. It’s not ambiguous.
That was news to me, so I decided to go looking for this elusive Immigration Clause in the constitution.
Section 8, Clause 4 of Article I grants Congress the power to “establish a uniform rule of Naturalization.” But naturalization, the process by which noncitizens are granted citizenship, is not the same thing as immigration, the circumstances under which noncitizens are granted entry and permitted to remain within the territory of the United States.
One might argue that power to control immigration is “necessary and proper” to regulate naturalization, but that’s not necessarily so. Congress could presumably grant citizenship to nonresident aliens, or alternatively regulate the naturalization of resident immigrants admitted to the country by other means, such as by states. It’s plausible, but not “express,” that naturalization includes immigration.
Clause 3 of the same section grants Congress authority to regulate “Commerce with foreign nations” but the word “commerce” normally connotes the exchange of goods and services and not the migration of persons across international borders. So that clause seems like maybe a stretch; it’s certainly not an express grant of immigration authority.
Section 9, Clause 1 of Article I provides:
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.
So now we’re getting closer.2 This isn’t an express grant of immigration power either, but it assumes that Congress would be able to prohibit the migration of persons, and limits that authority until 1808. But interestingly, it also assumes that states have authority to admit persons, in the absence of a prohibition by Congress.
And while today we’re used to the idea that the feds are large and in charge in immigration, the regime seemingly contemplated by the Importation Clause more closely describes the actual division of labor on immigration between the national and state governments during the Antebellum period.
It’s sometimes supposed today that the United States had open borders prior to the late nineteenth century, but on the contrary, individual states actively regulated immigration both from abroad and from other states, excluding persons or conditioning their entry based on criteria including criminal history, public health concerns, likelihood of becoming a “public charge,” or (mostly in southern states) race.
As Professor White demonstrates in Law and American History, Vol. II:
it was clear to late eighteenth- and nineteenth-century Americans that the primary governmental units who controlled the emigration and immigration of persons from one place to another, whether those persons were foreign aliens or American citizens, were the states. Immigration was first and foremost a state matter; not the province of the national government.
In fact, when Congress did try to regulate immigration in the Alien Acts of the late 1790s, by granting the President authority to expel aliens who espoused radical pro-French ideologies, Virginia and Kentucky argued that Congress had no such authority at all because immigration was “a power nowhere delegated to the federal government.”
After the Civil War, however, increasing immigration of Chinese on the west coast and eastern and southern Europeans on the east drove down wages of citizens and stoked a xenophobic back lash. At the same time, the authority of states to limit immigration was curtailed by the Fourteenth Amendment, not previously a problem. Children of foreigners born in the U.S. and naturalized foreign-born citizens were entitled to privileges and immunities, while non-citizen immigrants were entitled to equal protection. What could be done?
Enter the federal government. Only the feds could prevent what were considered to be undesired foreigners from entering the country in the first place, through treaties with foreign nations and nationally enforceable immigration bans. During the Gilded Era, Congress enacted a succession of nationality-based bans and quotas on immigration, particularly of Chinese citizens. The Supreme Court upheld such laws in the Chinese Exclusion Case in 1889, and the rest is history.
But that history is problematic for the modern immigration paradigm, because the federal government’s legal challenge to SB 4 is based on the proposition that Congress has exclusive authority to regulate immigration, so that Texas may not implement its own immigration law, even if federal law does not specifically prohibit it from doing so and the Texas law in question does not directly conflict with federal law.
Yet, nobody seemed to think that was the case for the first hundred years of American history. And, although the Fourteenth Amendment now prevents states from mistreating immigrants on the basis of nationality, it does not disturb their apparently preexisting right to prevent the entry of immigrants with no entitlement to remain here under federal law.
Still, the feds are standing on pretty firm ground, from the point of view of stare decisis. In Arizona v. U.S., the Supreme Court struck down a remarkably similar attempt by Arizona to make illegal entry under federal law also a state law crime.
In that case, the court explained that the national government‘s exclusive immigration power derives from its plenary authority to conduct foreign affairs. Ah, yes of course! Immigration is firmly grounded in the constitution’s Foreign Affairs Clause.
Where is that, again?
SB 4 makes it a crime under state law for undocumented immigrants to enter Texas and authorizes courts to deport such persons to Mexico. As of this posting, SB 4 has been temporarily stayed by the Fifth Circuit in a case brought by the federal government seeking to strike down the law as preempted under federal law.
And also grosser. It’s going to be pretty awful if that is the best textual basis we’ve got for federal immigration power. This provision was obviously about delaying congressional authority to limit the “Importation of … Persons,” i.e. enslaved persons. The inclusion of migration in the same provision, however, indicates a deep and sordid association between slavery and immigration at the founding.