Friday, December 12, 2014

Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:
A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 
It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 
It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.
 * * *
We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.
This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:
The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.
In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:
That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 
* * * 
The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.
* * * 
The power of exclusion of foreigners being 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, cannot be granted away or restrained on behalf of anyone.
I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.

Next: The Chinese Exclusion Acts (link will be provided upon publication)


Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Wednesday, December 10, 2014

Immigration History: A National Policy

Previous: Immigration and the Nomination of Abraham Lincoln

Up to this point, we have been able to move quite rapidly through American history, in large part because there was no national policy. All that changed in 1875, when Congress made it illegal for criminals or prostitutes to enter the country. This marks the first true restriction on immigration adopted by the Federal Government, but it was shortly followed by more. In 1882 a fifty cent tax was imposed in all immigrants and Congress prohibited entry by any "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Also in 1882, Congress pass the first of a series of Chinese Exclusion Acts, which eventually resulted in a virtual total bar on Chinese immigration. A Bureau of Immigration was established within the Department of Treasury in 1894 (previously the Commission of Immigration had operated under the Department of State per the 1864 Act to encourage Immigration). Anarchists were prohibited in 1903 (32 Stat. 1213) and the Bureau of Immigration was moved to the Department of Labor that same year. Illiterates were barred in 1917 (over President Wilson's veto).

In 1921 quotas were adopted, which was the first time an across the board numerical limit was adopted. This act attempted to preserve the then-current racial balance in the nation by limiting immigration from any country to 3% of that country's population in the United States as recorded in the 1910 Census.

Since these were an emergency measure, they were quickly replaced by the 1924 Immigration Act, which marks the first comprehensive application-based immigration system. Since it is so foundational we'll return to it in detail at a later date. In the meantime, there is still that nagging unresolved constitutional question.

Next: The Constitutional Question (link will be provided upon publication)


Austin T. Fragomen & Steven C. Bell, Immigration Primer (1985).

Michael C. LeMay & Elliott Robert Barkan (ed.), U.S. Immigration and Naturalization Laws and Issues: A Documentary History (1999).

University of Washington-Bothell, U.S. Immigration Legislation Online.

Monday, December 8, 2014

Immigration History: Immigration and the Nomination of Abraham Lincoln

Previous: State Based Policies

Just because there were no federal immigration laws before the Civil War does not mean that immigration issues did not influence politics.

One such instance is the nomination of Abraham Lincoln for President at the Republican convention in 1860. This convention saw stiff competition for the nomination among William Seward, Salmon Chase, Edward Bates, and Abraham Lincoln. When the convention started, Lincoln was thought to be in last place. However, Lincoln managed to obtain the nomination by angling for second preference of the delegates and letting the other three knock each other out.

Edward Bates, had previously been affiliated with the Know Nothing Party, a political movement formed in the 1850s in response to the high levels of immigration. Anti-immigrant and anti-Catholic, this party had seen some success but ultimately split over the question of slavery.

Bates' affiliation with the Know Nothings hurt him at the convention. A German-American delegation refused to support him, which threatened to actively oppose him among all German-Americans were he given the nomination.

This problem with Bates (among others), combined with failure of each of the other candidates to achieve majority support left everyone looking for an alternative. That was exactly who Lincoln had positioned himself to be--the ideal second choice for delegates who could not nominate their man yet would not support any of the other two.

So while the immigration issue was far from critical, and likely not even determination, it was a factor that played into the stalled candidacy of Edward Bates and the nomination of Abraham Lincoln.

Which just goes to show that here in the United States we don't even need an immigration policy to have political consequences for immigration politics.

Next: A National Policy


Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (2005).

Friday, December 5, 2014

Immigration History: State Based Policies

Previous: Naturalization and Deportation

As we saw, the new Congress exercised its authority to establish naturalization rules promptly after adoption of the Constitution. However, no such rules or restrictions were implemented on immigration. There were some reporting requirements implemented in the Alien and Sedition Acts, and self-reporting requirements for aliens in the Naturalization Act of 1802. These were strengthened when, in 1819, Congress passed an act that further required all ships to turn over lists of foreign passengers, which would then be passed on to the Secretary of State. Yet the federal government would not adopt restrictions or limitations on immigration until 1875.

Instead of federal rules, immigration during this era was left to the states:
[F]or the first century of the United States’ existence, many states enacted laws regulating and controlling immigration into their own borders. Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.
Texas, for example, had a Bureau of Immigration outlined in its 1869 Constitution "which shall have supervision and control of all matters connected with immigration".

One such state law, adopted by New York in 1824, required all ship captains entering the City of New York to record a list of all passengers and furthermore made the ships captains give a security to the city for any expenses the city might have as a result of the passengers for their first two years in the city. If the mayor thought any non-citizen passenger would become a public charge, that passenger could be refused entry and ordered returned to his prior place of settlement. The statute was "intended to prevent the state's being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such."

In 1829 the ship Emily arrived in New York with a hundred passengers but the captain never made the required report. When the city sought to collect the statutory penalty for this violation from a consignee of the ship, the defendant raised a constitutional argument. The statute, the defendant claimed, was a regulation of interstate commerce, which the Constitution gave exclusively to the federal government. Consequently, the state law was unconstitutional.

The Supreme Court disagreed and affirmed the constitutionality of the statute. In New York v. Miln, 36 U.S. 102 (1837), the Court decided that the statute was not an exercise of commerce power, but instead was an exercise of police power. Unlike commerce power, police power was not delegated to the Federal Government under the Constitution, but instead remained with the states. The Court concluded that while the federal commerce power extended to goods, persons "are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition to the states from imposing a duty on imported goods."

The Court also found no problem with New York's motivation for the statute:
Now in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is perhaps more than any other city in the Union exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil; they have endeavored to do so by passing, amongst other things, the section of the law in question. We should upon principle, say that it had a right to do so.
The concurrence by Justice Thompson sheds even more light on the question of the proper placement of the power to regulate immigration:
Can anything fall more directly within the police power and internal regulation of a state than that which concerns the care and management of paupers or convicts or any other class or description of persons that may be thrown into the country and likely to endanger its safety, or become chargeably for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered. 
A resolution of the old Congress, passed on 16f September 1788, has an important bearing on this subject; 13 vol. Journals of Congress 142. It is as follows: 
"Resolved that it be and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States." 
Although this resolution is confined to a certain description of persons, the principle involved in it must embrace every description which may be thought to endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court relates to the source of the power which is to interpose this protection. It was passed, after the adoption of the Constitution by the convention, which was on 17 September 1787. It was moved by Mr. Baldwin and seconded by Mr. Williamson, both distinguished members of the convention which formed the Constitution, and is a strong contemporaneous expression, not only of their opinion but that of Congress, that this was a power resting with the states, and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states.
* * *
Whether therefore the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the City of New York, and in this view belonging exclusively to the legislation of the state, or whether the subject matter of the law be considered as belonging concurrently to the state and to Congress, but never having been exercised by the latter, no constitutional objection can be made to it. Although the law, as set out in the record appears to have been recently passed, 11 February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev.Laws 1801, 556, and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional would be productive of the most serious and alarming consequences, and ought not to be done unless demanded by the most clear and unquestioned construction of the Constitution.
Justice Baldwin also concurred, finding that since there was no delegated power for the Federal Government to regulate immigration, the state power could not infringe on a federal power. Only Justice Joseph Story dissented on the grounds that the New York law was a regulation of interstate and international commerce, which was an exclusive power of the Federal Government.

Only twelve years later the Miln case would be curtailed. In Passenger Cases, 48 U.S. 283 (1849), and in language reminiscent of Justice Roberts' opinion on the Affordable Care Act,  the Court examined whether New York and Massachusetts statutes requiring payment by ship's captains for passengers was an impermissible "tax" or a permitted health regulation. Ultimately the Court classified it as a tax, distinguished it from the law in Miln, and declared it an unconstitutional state interference with commerce. However, Miln and state prohibitions on the immigration of paupers would live on in relative obscurity until formally declared dead in Edwards v. California, 314 U.S. 160 (1941).

In the meantime, the Federal Government did begin to adopt its own immigration regulations.

Next: Immigration and the Nomination of Abraham Lincoln

Wednesday, December 3, 2014

Immigration History: Naturalization and Deportation

Previous: The Constitution

Exercising its authority to enact a uniform law of naturalization, Congress passed a naturalization law in 1790 which allowed any white alien over twenty-one to petition for citizenship after two years of residence provided that they had "good moral character." The residency requirement was lengthened to five years in 1795.

Then, in 1798, Congress passed and President John Adams signed the Alien and Sedition Acts. Most known for their attempt to suppress criticism of the government, these acts also had naturalization and immigration implications. Motivated in part by the fear of a war with France, and the increased levels of immigration from France after the French Revolution, these acts increased the residency requirement for citizenship from five to fourteen years. They also permitted the President to order the removal of any alien that the President determined was "dangerous to the peace and safety of the United States" and required all ship commanders, upon arrival at any United States port, to report any aliens on their ships. Finally, in the event of a war, the President was authorized to proclaim that all non-citizen male aliens who were subjects of the hostile government could be "apprehended, restrained, secured and removed, as alien enemies." This last provision remains in effect today at 50 U.S. Code § 21 and was used during World War II against Japanese, German, and Italian nationals.

These laws were immediately unpopular and only loosely enforced and I was unable to find whether any deportations actually took place during this era. Ultimately, many of the more objectionable portions expired.

In 1802, Congress again revised the naturalization requirements, this time moving the residency requirement back down to five years. It also required all aliens who sought citizenship to report  to the clerk of their respective District Court at the time of their migration, who in turn kept a record of all aliens migrating to the jurisdiction. Although many of the details and other requirements have been tinkered with, this five year residency requirement remains in place today at 8 U.S. Code § 1427.

However, during this entire era, there were no federal restrictions on who could enter the country. Instead, such restrictions were left to the states.

Next: State Based Policies

Monday, December 1, 2014

Immigration History: The Constitution

Previous: Before the Constitution

As explained previously, the lack of a national naturalization policy in the Articles of Confederation was one of the motivations for adopting the Constitution. The Constitution fixed this deficiency in Article 1 Section 8 by granting Congress the power "[t]o establish an uniform Rule of Naturalization."

However, there was no corresponding grant of power to Congress to establish or otherwise restrict immigration. The closest the Constitution comes is in Article 1 Section 9, where it 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, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
This clause is widely interpreted to be a reference to prohibiting the slave trade, nothing more. And in fact, relying on this clause, Congress passed and President Jefferson signed legislation prohibiting the slave trade in 1808.

During the ratification debates opponents of the Constitution attempted to argue that this clause could be used to "prevent voluntary and beneficial emigrations from Europe to America." James Madison in Federalist No. 42, after affirming that it was directed at the slave trade, dismissed, among others, the immigration argument: "I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."

Now, the Constitution only granted the new national government limited legislative powers. It specifically states in Article 1 Section 1 that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (emphasis added). This is in contrast to the opening of Articles 2 and 3, which grant "[t]he executive Power" and  "[t]he judicial Power" to the President and the courts, respectively. Unlike the other two, the legislative grant of power is limited, not plenary. And were there any confusion about this, the Tenth Amendment was added: "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."

So here's the problem. Under the Constitution, Congress has limited legislative powers, and those powers do not explicitly include the power to regulate immigration (remember, immigration is distinct from naturalization). So to the extent that immigration restrictions are classified as legislative, there is a significant problem.

There are a few ways around this. If immigration restrictions are somehow "necessary and proper for carrying into Execution" the naturalization power, it could be included there. Or if immigration is considered part of commerce, it could be regulated through the commerce clause. And there always is the slave trade clause. However, none of that is clear from the founding era or founding debates. Consequently, under a strict textualist approach, an argument remains that Congress has no Constitutional authority to legislate an immigration policy.

Hold that thought, for we shall return to it. It will take the judicial branch nearly a hundred years to sort it out.

Next: Naturalization and Deportation
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