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
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