Is Immigration a State or Federal Issue?

Proponents of immigration as a state power say:

First, that immigration is not mentioned in the Constitution, therefore, it isn't a delegated power.

A spurious argument without strength; a great many things aren't mentioned in the Constitution – sailors yes, but not marines; post roads but not toll or military roads; importation of persons but not slavery, to name a few items.

The US Marine Corps has defended the Republic for almost 230 years. The National Road was undertaken in 1811 to facilitate settlement of the Northwest, and the National Defense Highways (now called the Interstates) were originated by Pres. Harry Truman specifically for military use.  Slavery is mentioned nowhere until the 13th Article of Amendment (1865), but Congress reserved the right to tax importation of slaves in 1787.

You might suspect I am splitting what few hairs remain to me, and you would be precisely correct because the proponents of this theory are doing just that.  Specific words it may lack, but the concepts and principles are there, if you care to look.

Second, that the federal government didn't enact immigration law until 1880s, therefore, it isn't a federal power.

An even more spurious argument, if such is possible.  The question is never who did it; the question is who was authorized to do it.  Anyone who makes the argument, "The federal government didn't do it, therefore, the federal government can't do it," must brace themselves for an argument which is the other side of that same coin, "The federal government did it, therefore, the federal government can do it." No one outside the current Presidential Administration (and a few old Congressional warhorses) buys into such fundamentally flawed logic as that.

I stand with those who call immigration a federal issue:

My primary arguments are Constitutional.  Article I Section 8 states (in part): 

The Congress shall have power . . . To regulate Commerce with foreign Nations, and among the several States . . . To establish a uniform Rule of Naturalization, and . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . . .

First, I submit that immigration is necessary to naturalization – you have to come into the US before becoming a citizen of the US.  You cannot apply for citizenship in a foreign country.  (Actually, you could, but no sane country would accept such an application.)  It doesn't matter whether you intend to acquire citizenship or not when you come.  Some come intending to be citizens; some come to work or study temporarily; some come intending to stay but then decide against; some come temporarily and later choose to become permanent fixtures.  Whether or not any individual takes advantage of the option to become a citizen is immaterial, that option always exists.  Since we cannot know who will take advantage of the option, every immigrant must be considered a potential candidate for citizenship.  Therefore, every immigrant must operate under the same, uniform rules.

Second, immigration does not initiate in the several States, immigration initiates in foreign countries.  The federal government has plenary authority over international relations.  The decision on which foreign citizens may travel from a foreign country into the United States is a diplomatic decision.  Therefore, by definition, immigration is a federal decision.

Finally, in Edwards v. California (1941), the Supreme Court invalidated a California law which forbade bringing non-resident indigent persons into the state.  In this case, the Court unanimously held that the movement of persons is commerce.  Regulating interstate commerce or international commerce is a delegated federal power.  Only 13 States have international land borders.  If the States did control immigration, aliens could only enter those States without federal permission, and, once there, could not leave the State, except to leave the Union.  Entering the other 37 states would require crossing state or national borders or international waters, and would have to be conducted under interstate or international commerce rules.

Secondarily, there are legal arguments in federal favor.  Who says that Congress didn't regulate immigration before the 1880s?

In 1790, the First Congress passed the first law referencing immigration:

That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States.  And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens:

Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:

Provided also, that no person heretofore proscribed by any state, shall be admitted a citizen, except by an act of the Legislature of the State in which the person was proscribed.

This first act is doubly notable.  Congress required residency (which requires immigration) as a prerequisite for naturalization, and required the federal government to partner with the several States in judging worthiness for citizenship – at least in regard to those persons who had been resident in the States before the Constitution took effect.

In 1798, the Alien & Sedition Acts permitted President John Adams to deport foreigners deemed dangerous and increased the residency requirements to 14 years.  The fact that these were generally bad ideas is immaterial to the fact that Congress passed them, the President signed them and the Courts never objected to them.  By the way, one of them, An Act Respecting Alien Enemies, included no sunset provision.  It remains in effect as 50 USC 21-24.  If the federal government has authority to force aliens out of the country, does it not follow that the federal government has authority to force aliens not to enter the country?  What simpler method for forcing them out could be found than to refuse them entry in the first place?

In 1849, the Supreme Court ruled on "the Passenger Cases" – Smith v. Turner and  Norris v. Boston, saying that States did not have the right to impose a tax on passengers disembarking into the State from overseas.  This predates Edwards v. California by almost a century, establishing that transport of people is commerce, establishing that States cannot control (by taxation) interstate or international commerce.

In 1875, the Supreme Court ruled on two more cases – Henderson v. Mayor of New York and Chy Lung v. Freeman.  In the latter, the High Court stated specifically, "passage of laws which concern the admission [that is, immigration] of citizens . . . of foreign nations to our shores belongs to Congress, and not to the States."

Contrary to some beliefs, the Chy Lung decision was not new doctrine. It was nothing more than the definitive statement of laws Congress had been passing, and powers Congress had been exercising, since the founding of the present government.

Lastly, there are two practical arguments:  If the several States controlled immigration, we would have 51 different sets of rules.

We'd have one set in each of the several States and Congressional rules on immigration involving territories.  This is clearly not an acceptable state of affairs. Article IV requires:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Suppose that States did control immigration and Oregon had stricter rules than California.  If immigrant John Doe doesn't like Oregon's rules, he could enter California or any other state that was more lenient.  Oregon would be forced to accept John Doe as a legally resident alien in spite of the fact that Doe didn't comply with Oregon's immigration law.  Let's be clear, if Oregon didn't want Doe to immigrate into Oregon, Oregon would still have to accept Doe because California accepted Doe.  The very control the States seek would be totally circumvented, by the lawful acts of other states.

We could also see a very interesting situation:  Foreigners wanting to visit the District of Columbia could not enter the District, except by passing through Virginia or Maryland, since the District has neither air nor sea ports.  Each State might try to outdo the other in ease of transit so as to command the greater part of the tourism industry.  But the federal government would still control immigration law concerning the federal district, and Congress isn't constitutionally required to give full faith and credit to state law.  Virginia or Maryland could actually admit aliens who could be refused entry into Washington.  Similar problems could arise in New York City, since New Jersey is host to one of the New York City metropolitan area airports and two of its sea ports.  Such competition could arise between New Orleans and Mobile or Philadelphia and Baltimore, and other cities or States.

Oh, did you notice the two inconsistent arguments?  On one hand, I say that, if States had control, immigrants would be locked into their State of entry because of the interstate commerce clause.  On the other hand, I say that any immigrant could go to any State if that immigrant complies with any State law under Article IV.  Practically speaking, how could this inconsistency be resolved?  Lawsuits — possibly many long, expensive lawsuits.  Where would it end?  In the Supreme Court of the United States which already has ruled (and would rule again) in favor of federal control over immigration.

Those who seek State control over immigration are honestly trying to solve a problem that the federal government is willfully ignoring.  It's a noble effort, but misguided – whatever State-based solution they come up with will cause more problems than it solves, and it won't change anything.  Those who want to fix America's immigration problem need to fix America's Congressional problem:

Stop electing politicians and start electing statesmen!

Thanks for listening, tune in next week for another rant, and have a great Presidents' Day!