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05 May 2014

Immigration and the Constitution

Immigration is a messy, messy issue. And it's an issue that causes a whole lot of heartache when families are split. It costs lives down at the southern border, and it touches issues of national security. The question, "What should we do about immigration?" is an important question.

Recently, Brother Uchtdorf, along with several other religious leaders, was invited to the White House to discuss immigration with the President. The Church's newsroom had a write-up on the event that included a statement on the Church's position on immigration, and we got to discussing this in a Facebook group for discussing the Constitution of which I am a member. We quickly decided that the Church's position on immigration doesn't actually say much, and our conversation turned to what the Constitution says about immigration. Knowing exactly what the Constitution says our government should and should not be doing is important:

I had to go re-read the Constitution and find the relevant section:

Article I Section 8:
The Congress shall have the power ... to establish an uniform rule of naturalization;

It is also possible that a treaty would touch on immigration, giving the President, with the consent of the Senate, a possible legitimate say in immigration:

Article II Section 2:
He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

In the case that the President's treaty powers include matters dealing with immigration, then the Judiciary might also be able to rule on the matter.

Article III Section 2:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;

As far as I have found, in re-reading the document, this is the sum total of the powers delegated, relating to immigration. Not much there. To me, at least at first reading, it looks like while the federal government has the power to determine the naturalization process - the path to citizenship, so to speak - the States retained the power to determine which foreign nationals are permitted to reside in a State. Obviously, that's not the way things are done. But, from just reading the document, that looks to me like the way it ought to be.

In the course of the Facebook conversation, several articles were brought up. This one, for instance, points out that the federal courts have ruled that the federal government has broad powers to regulate immigration, even though it's not specifically granted by the Constitution. I am, however, unimpressed by the federal government's tendency to grant itself broad powers, and, in light of the Tenth Amendment, I find the argument as presented in the essay to be not convincing at all.

Tenth Amendment:
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, what are the power prohibited to the States? That's covered in Article I Section 10, and it's a pretty lengthy list, but power to determine who may reside in State does not appear on the list.

Article I Section 10:
No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing  the obligation of contracts, or grant any title of nobility.

No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Typically, the Constitution says exactly what it means. It dates from before "legalese" became fashionable, and it was intended that the common citizen should be able to read and understand the law. Therefore, to me, the fact that the power is not expressly delegated says that it belongs to the States (it wouldn't make any sense at all for it to be a power retained by individuals). The Heritage Foundation has a great essay about naturalization, though it really doesn't distinguish between immigration (moving to the US and setting up residence in a State) and naturalization (becoming a citizen). The Heritage Foundation essay also goes into some very interesting commentary on the difference between citizenship as defined by the US, and as defined by other world powers, though that is beyond the scope of what I'm doing this evening. This passage, however, is more relevant:

Few powers are more fundamental to sovereignty than the control over immigration and the vesting of citizenship in aliens (naturalization). According to the Declaration of Independence, "obstructing the Laws for the Naturalization of Foreigners" was one of the grievances that led the American colonists to break with Britain.

Under the Articles of Confederation, each state retained authority over the naturalization of aliens. This resulted in widely varying state practices, which James Madison in The Federalist No. 42 called a "fault" and "defect" of the Confederation. At the Constitutional Convention, there was virtually no opposition to moving the naturalization power from the states to the new national government, and in the ratification debates only a handful of Anti-Federalists even raised the issue. James Madison seemed to speak the sentiment of most when at the Convention he expressed his wish "to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & prosperity."

I will examine more closely precisely what Madison was calling a "fault" and a "defect" in a moment - but it was more complex than that each sovereign nation in the Union was deciding who to naturalize.

Certainly, Congress has power to decide how citizenship is acquired. (Even if they are badly botching the job right now.) Still, I don't see how the Constitution can be construed to mean that the federal government gets to choose who lives in the various States. To me, that looks like a power that is clearly reserved. I think it wise to always give the smallest amount of power possible to the federal government, as they are so distant and unresponsive to the people, even more so than was anticipated in the beginning of our nation.

Having read the document itself, I also want to look at the explanatory commentary collected  Founders' Constitution to see how this was understood in our nation's beginning. It is possible that the language has shifted enough that the differences I am thinking ought to exist were not considered significant 200 years ago.

First of all, at the time of our Independence, immigration was looked upon as a good and necessary thing. So much so that the obstruction of worthy immigrants' migration to the several States was among the grievances listed in the Declaration.

-He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.

The Constitution.net article is flawed in its reasoning:

"There is also an argument that immigration is an implied power of any sovereign nation, and as such, the federal government has the power to regulate immigration because the United States is a sovereign nation."

The problem with this is that there were thirteen nations - the individual States - entering into a Confederacy, a permanent alliance, with each State agreeing to do certain things in a unified manner, but EACH OF THE INDIVIDUAL STATES RETAINED ITS SOVREGENITY. In fact, this misunderstanding of our system of government is, in my opinion, one of the most common there is, and you simply cannot get a correct idea of what our multi-level system of government is supposed to look like if you do not grasp this. One of the charges levied by the Anti-Federalists was that the proposed Constitution would, in essence, create a single nation rather than a confederation of sovereign nations. Alexander Hamilton dealt with this criticism in Federalist #32:

An entire consolidation of the states into one complete national sovereignty, would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

James Madison addressed the issue of naturalization - though not really that of immigration - in Federalist 42. Rather, it is an explanation of the faults of the Articles of Confederation on the matter, and a brief comment on how this would be improved under the new Constitution:

The dissimilarity in the rules of naturalization, has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the 4th article of the confederation, it is declared, "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states, and the people of each state, shall in every other, enjoy all the privileges of trade and commerce, &c. There is a confusion of language here, which is remarkable. Why the terms free inhabitants, are used in one part of the article; free citizens in another, and people in another; or what was meant by superadding "to all privileges and immunities of free citizens,"  ... "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizen of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own states; so that it may be in the power of a particular state, or rather every state, is laid under a necessity, not only to confer the rights of citizenship in other states, upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each state, of naturalizing aliens in every other state. In one state, residence for  short term confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the later, may, by previous residence only in the former, elude his incapacity; and thus the law of one state be preposterously rendered paramount to the law of another, within the jurisdiction of the other. (emphasis original)

Madison doesn't directly address the question at hand, but he does deal with it indirectly, so with a bit of logic, we can come closer to our own answer.  Being as distinct from each other as France and Spain are, it is only natural that Pennsylvania and New York, for example, should set their own requirements for who may set up residence within their own boundaries. And in 42, Madison doesn't have any argument with this, only with the current system under the Articles, where incoherent wording has inadvertently lead to a situation where the states themselves are forced into conferring citizenship on people who have not been accepted in the State in which they actually reside. It appears that mere residency had become the standard for conferring citizenship, owing to the defect in the Articles, and of course this would be unacceptable. This passage does, however, lay to rest the idea that they were not making a distinction between foreign citizens allowed to be residents and naturalized citizens, as that distinction is at the heart of what Madison is concerned about.

On to the House debates as they were setting up the Rules of Naturalization, as required by the Constitution. It is very interesting to see what they do - and do not - address in their debates. The Founders' Constitution has about 8 pages of text from House debates on the matter from 3-4 February 1790. In that time, they never once address basic immigration issues such as excluding contagions and criminals. They do not talk about any kind of standard for entering the several States at all. I don't think it's at all reasonable to suppose that they would consider those to be unworthy topics, they simply were not the topic at hand. Their conversation was limited very narrowly to Naturalization, and in several places, they debated if even this narrowly focused work might not be going further than the Constitution allowed. One of the ideas under consideration was if the prospective citizens ought to be required to be a land owner prior to their naturalization, but there were some that felt that this went further than the Constitution allowed:

Mr. White doubted whether the Constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of Congress ceases to operate upon him; the rights and privileges of citizens in the several States belong tot those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States. Now, if any State in the Union should choose to prohibit its citizens from the privilege of holding real estates, without a residence of a greater number of years than should be thought proper by this House, they could do it, and no authority of the Government, he apprehended, could enforce an obedience to a regulation not warranted by the Constitution.  .. all, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization, and not to a general definition of what constitutes the rights of citizenship in the several States.
-House debates on the Rules of Naturalization, 3-4 Feb. 1790. (The Founders' Constitution 2:563)

At that point, there was no outright disagreement with Mr. White's suggestion that they were overstepping their authority, and the debate backed away from making residency and land requirements for a while, though it did come back to the topic later. However, the members of the house were careful about the Constitution, even as they tried to determine exactly what it did and did not allow, as evidenced by this from Mr. Tucker:

He had no doubt the Government had a right to make the admission to citizenship progressive, the Constitution pointed out something of this kind, by the different ages and terms of residence they annexed to the right of holding as seat in this House and in the Senate, and of being chosen President. No inhabitant can become President of the United States, unless he has been an inhabitant fourteen years; which plainly infers that he might have been  a citizen for other purposes, with a shorter residence But it goes still further, it enables Congress to dictate the terms of citizenship to foreigners, and it prevents them from being admitted to the full exercise of the rights of citizenship by the General Government; because it declares that no other than a natural born citizen, or a citizen at the time of the adoption of this Constitution, shall be eligible to the office of President.

With respect to their interference with the State Governments, he believed it to be improper; and hoped, therefore, that the bill would be confined solely to the objects of the General Government.
-House debates on the Rules of Naturalization, 3-4 Feb. 1790. (The Founders' Constitution 2:564)

In light of what the Constitution itself says, as well as the words of those early Statesmen as they worked to hammer out the details of the Rules of Naturalization, I have come to a couple of conclusions.

1. Immigration and Naturalization are not the same thing.

2. The Constitution delegates authority to Congress to create a "uniform Rule of Naturalization," but no more. They have no legitimate authority on immigration.

3. Whereas the authority of Congress is so very limited, the States are well within their rights to police their borders, and govern immigration at the State level, regardless of what powers the federal government has since granted itself and attempted to legitimize through Supreme Court rulings. In the end, powers not delegated are still reserved until the Constitution is amended by an authentic act of the People.

4. The overreach in this area is powerful, well-entrenched, and will be very difficult to dislodge. However, I believe that it is still possible to return to a true Constitutionally limited government. IF the People wake up an value freedom more than convenience, ease, and the familiar way things have been done.

*The quote from John Taylor is from "The Mormon," 17 Feb. 1855, as quoted in A Glorious Standard, page 20.

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