In response to the posts on immigration by Mike Ramsey and myself (Mike Rappaport), Patrick Charles is submitting a guest post. Some of Patrick's other works are available here.
In two posts on Arizona v. United States, Michael Ramsey and Michael Rappaport provided some interesting commentary on federal-state immigration powers. Ramsey, who posted first, makes a number of comments that do not comport with the historical record, including (1) there is no link between immigration powers and the Naturalization Clause, (2) the Supreme Court’s plenary power doctrine seems to be in violate of the Tenth Amendment, (3) any “admit or not admit” powers was “originally understood as an executive power of the President,” and (4) immigration plenary power does not support a “dormant” foreign affairs doctrine (agreeing with Julian Ku). Rappaport then follows suit through mostly a textualist approach, and correctly points out that the Constitution does not grant any specific “immigration” powers. It is for this reason that Rappaport concludes:
“[T]he Constitution does not allocate the power over immigrants to one entity, but instead to a variety of entities, including the Congress, the President, and the states. Congress has the power to regulate commerce with foreign nations and that probably allows it to prevent immigrants from entering the United States through commercially regulable entities, such as ships and international highways. Thus, this explains, if nothing else does, the Constitution’s prohibition on the migration or importation of persons.” (emphasis added)
Both Ramsey and Rappaport’s claims are problematic for anyone who has examined the historical record or read the volumes of historical scholarship in this area. I will say, however, that Ramsey and Rappaport’s claims are amenable compared to that of Peter J. Spiro who audaciously claims the Founders maintained “no views of any kind on federal control of immigration, the power over which is not found in the Constitution itself.” Not true, not true at all. This author alone has addressed such frequent misconceptions in two law review articles—The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion (Texas Review of Law and Politics), and Recentering Foreign Affairs Preemption in Arizona v. United States (Cleveland State Law Review).
To truly understand the Founders’ view of immigration and sovereignty, one must begin with the Declaration of Independence. One of the grievances stipulated that the crown “endeavored to prevent the population of these States; for that purpose obstructing the Laws for migrations hither.” This grievance was in reference to the crown usurping what was seen as colonial authority. It is a historical point of emphasis that as eighteenth century American political thought progressed, the idea of virtual representation made less sense, and the colonists sought to establish a government built upon the “consent of the governed” with equitable principles diffused throughout. Obviously, one of subjects of “consent” was the rules respecting immigration, which was intertwined in international law. The Declaration’s reference to “Laws of Nature” and “Nature’s God” had nothing to do with individual natural rights, and everything to do with the law of nations, what was often referred to as the “laws of Nature” or “Nature’s God.” In fact, following the Declaration, the Continental Congress offered our first amnesty to Hessian auxiliaries:
“Whereas it has been the wise policy of these States to extend the protection of their laws to all those who should settle among them, of whatever nation or religion they might be, and to admit them to the participation of the benefits of this practice, as well as its salutary effects, have rendered it worth of being continued in future times…Resolved, Therefore, that these states will receive all such foreigners who shall leave the armies of his Britannic majesty in America, and shall chuse to become members of any of these states; that they shall be protected in the free exercise of their respective religions, and be invested with the rights, privileges and immunities of natives, as established by the laws of these states….” (emphasis added)
In conjunction with the drafting of the Declaration of Independence, the Continental Congress authorized the drafting of the Articles of Confederation. The Articles were not drafted for another year (1777), and not ratified for another seven years (1783), yet were only in full force for four years (1783-1787). One of the reasons for dispensing with the Articles were the negative implications it could lead to in terms of foreign affairs, naturalization, citizenship, and immigration. This historical fact is unquestioned by historians.
Certainly, Ramsey, Rappaport and others are correct that the Constitution says nothing of “immigration” or “alien” powers, but such powers were unquestionably vested with the federal government in order to prevent foreign embarrassments. It was an attribute of national sovereignty consistent with the law of nations. In terms of any Tenth Amendment argument, not only does this stance fail to understand what prompted the adoption of the Constitution, but no state constitution I know of ever claimed concurrent or any authority over immigration, migration, or alien powers (this excludes the states’ power to grant or not grant their respective privileges and immunities). This fact makes it problematic for the textual originalist, and serves as another example as to why textualism is often doctrinally problematic as a starting and end point. (I have addressed this before on Originalism Blog when analyzing the Press Clause here).
Just to drive the “textualist” problem home with the words “immigration” or “migration,” upon a full text search for the words “immigration” or “migration” in a digital database of all American broadsides and pamphlets through 1800, only a handful of “immigration” hits appeared contemporaneous with the Constitution. The same held true for “migration” when one limited the search to legal documents, books, and treatises (there were plenty of references to the term in non-legal works). And in almost every case, the word “migration” came from a reprint of the Declaration of Independence’s text.
This begets the question: “How did the Founders’ understand immigration powers?” One place to look is the legal treatises of Hugo Grotius, Emer de Vattel, and William Blackstone. Each described any immigration powers as an inherent attribute to national sovereignty. Not one Founder questioned these works or the doctrine of allegiance that came with it—not one. In fact, in my research I have found that a number of early Supreme Court Justices agreed with both doctrines. Justices John Jay, John Marshall, William Cushing, and James Iredell all expressed agreement with these principles at one point or another. Then there are also the likes of George Washington, Alexander Hamilton, and Pennsylvania Judge Alexander Addison.
This begets another question: “Where did each of these Founders find congressional power over immigration?” The answer is that it depends on which Founder you asked. Most found it an attribute of the “law of nations” and necessary for national self-preservation (the very same legal principle the Chinese Exclusion Case claims). At the time the 1798 Alien Act was being debated, most took this stance, but others attributed the powers as linked to the Naturalization Clause, and a minority listed the other constitutional clauses that Ramsey and Rappaport mention. However, the Naturalization Clause is the most sensible if one is adamant on textual support, for how can Congress have the power to prescribe who is a citizen of the United States and the rights that accompany it (i.e. the state citizenship that would follow), yet not say who may and may not enter the United States in the first place? Moreover, during the debates over the first naturalization laws, there were a number of references to immigration policy, especially the desire to lure and attract persons of property (and in some cases deter the less desirable). These facts are both telling and important.
In reply to Ramsey’s executive power argument, he leaves out an important historical fact—power over immigration was an issue of discontent between Parliament and the crown. There are numerous examples of this and it was an ongoing theme in English history. Still, the point worth making is that neither Parliament nor pamphleteers ever questioned the government’s plenary power in this regard or its link to the law of nations. Ramsey is wrong to assume that the Executive controlled entry and exit as an originalist matter. Certainly, if the situation presented itself that the alien entrant proved to be an “alien enemy” or that the country was in a state of war, I have no doubt that the Executive could expel or exclude persons in the interest of national security (no one questioned this power in relation to “alien enemies”). However, any general immigration laws and its relation to foreign policy was vested with Congress (they are unquestionably the law making body), and the Executive served to enforce those laws. This included general entry and exit policy.
I could go on and on about the history of immigration, the law of nations, national self-preservation, etc, but one can read either of my law review articles that discuss these points. What I will leave the readers with is with two quotes. The first is Associate Justice James Iredell in 1798:
“[T]here are certain conditions, without which no alien can ever be admitted, if he stay ever so long; and one is . . . he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same…Besides, any alien coming to this country must or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to, and consequently, whatever risque he may incur in that capacity is incurred voluntarily, with the hope that in due time by his unexceptionable conduct, he may become a citizen of the United States.”
Then there is William Rawle, who perfectly conceptualizes the federal-state division over immigration as the founding generation understood it:
“The United States do[es] not intermeddle with the local regulations of the states in [respect to its privileges and immunities]. Thus an alien may be admitted to hold lands in some states, and be incapable of doing so in others. On the other hand, there are certain incidents to the character of a citizen of the United States, with which the separate states cannot interfere. The nature, extent, and duration of the allegiance due to the United States, the right to the general protection and to commercial benefits at home and abroad, derived either from treaties or from the acts of congress, are beyond the control of the states, nor can they increase or diminish the disadvantages to which aliens may by such measures on the part of the general government, be subjected.”
Posted at 1:13 AM