Does Congress have the authority to regulate immigration?

So, I had an amusing thought today. After listening to more of the not racist at all rantings of various anti-immigration folks on the news, it occurred to me to wonder if the immigration laws are even constitutional in the first place. A1S8 only says that, "Congress shall have power to establish a uniform rule of naturalization throughout the United States." Naturalization is the process of granting citizenship to those already living in the US, it is not the original entry of people into the country. I imagine it's not addressed because the founders would have been utterly flummoxed at the idea of wanting to keep people out in the first place. Of course the world was very different back then.

While obviously any reasonable reading of the Constitution would consider that clause to apply to the entire process of immigration, that's not what it actually says. And since we have so many strict constructionists around who read the Constitution in a decidedly unreasonable manner, I put it to you:

Are immigration laws even constitutional when the Constitution does not give Congress the power to arrest people for the horrible crime of wanting to come to this country? And if they're not isn't it the President's duty to not enforce them?

 

This is a very good point and one I've attempted to bring up before. And even if you accept the premise that the federal government has the constitutional authority to regulate immigration, the extent to which the founding fathers regulated immigration was relatively minimal compared to today's draconian system that is, ironically enough, a remnant of the so-called "progressive" era, WWI in particular, where freedom of movement was highly curtailed and centralized. Don't expect much of a response from the resident so-called "conservatives" on this issue, or any other where their draconian viewpoints conflict with an originalist construction of their blessed constitution (war on drugs).

 

Well IMO the simplest explanation is the "do WTF they want clause" better known as the commerce clause. If you can use that to regulate a plant on my property. That will never leave my property. Well at least until it "accidentally" catches on fire and drifts into the atmosphere. What can't it be used for?

If you read Justice Thomas's dissent in Gonzales vs Raich it shows how unlimited it has become.

The better explantion is here however IMO.

http://constitution.i2i.org/2010/12...-really-give-congress-power-over-immigration/

 

So...we're supposed to be pretending that "ILLEGAL" IMMIGRATION = "LEGAL IMMIGRATION...is that it?

 

While Congress is only given the power to deal with naturalization the issue of immigration also is not defined as a State only power. The Supreme Court had to wrestle with this issue very early on and surprisingly used the Commerce Clause to come to the decision that immigration was solely the job of the federal government.

http://en.wikipedia.org/wiki/Passenger_Cases

Since then, the US Supreme Court has consistently said that immigration falls under the realm of Congress and no State may interfere with any law that they pass.

 

If I recall correctly, I don't think Congress passed any regulations on immigration per se until the Grant administration. And the naturalization process was amazingly simple. All you had to do was file two papers with any court in the country a couple years apart, take the citizenship oath, renounce all allegiance to any foreign governments, and have a citizen to vouch for your good character. That's it.

I'd say that the simplest explanation is that the founders expected future generations to think for themselves and exercise their common sense, and not to look back to them to have solved all possible problems facing the country in the future.

No, Grokmaster, I am simply asking those of you who are both strict constructionists and immigration hawks how you reconcile those two positions given that the constitution doesn't explicitly give Congress that power. Yes, I am asking the question with tongue firmly in cheek and yes, I am mocking both positions to a certain extent.

 

The 1st immigration law was passed in 1819. Naturalization and immigration it is argued go hand in hand.

 

The founders likely never imagined 50 states and 300 million citizens. There is a amendment process but not much use on controversial issues. However the constitution is what binds us together. What is your solution? Every issue decided on Mob rule? If so doubt you would like that much either. No constitution = no USA we have to live by it. We surely could not rewrite it today. Even the founders had disagreements yet not near the differences that exist today. The constitution is what legally binds me to the idea of the USA. Without it no such loyalty would exist.

It is well within congress authority to regulate immigration. Using either orginal intent or creative interpretation(almost every thing is using this) Mob rule would allow it as well. Even if it wasnt it would be a state right which many would actually prefer.

 

The same several clauses in the Constitution that have been stretched to infinity to allow the expansion of the Executive Branch in the 20th century and beyond outside the enumerated powers absolutely, positively, indisputably allow the legislature to regulate immigration. Else OP is arguing for invalidation of much of our government. Live by the sword, die by the sword. Can't have all the illicit, socialist programs of our government without having immigration regulation, sorry.

 

Obviously they go hand in hand, but arriving at that conclusion involves using common sense. And once you start using common sense, who knows what could happen. You might realize that the idea that there is a worldwide conspiracy of millions of people creating the idea of climate change out of nothing isn't even close to being reasonable. Or sane. Or you might realize that cutting government spending means firing people, and saying that cutting spending will create jobs is effectively saying that firing people will create jobs.

But I digress. Yes, naturalization and immigration are closely related, but they're not the same thing. The Naturalization Act of 1790 was the first federal law on naturalization, and the Page Act of 1875 was the first law limiting immigration. I'm not sure what law from 1819 you're referring to.

It is not a binary either or thing. There are choices between strict adherence to every word and comma and completely ignoring the constitution altogether. And what binds us together are the principles embodied in the Constitution, not the document itself. (Which doesn't mean the document is irrelevant, since the rule of law is one of those principles.) I would imagine that most of the founders would be quite surprised that we're still using the original constitution if they could see the world today.

Of course we could write a new Constitution today. The founders didn't have differences anywhere near what we have today? Really? Umm, slavery? To be blunt, most of what's going on today isn't really about substantive issues, it's just politics and tribalism. It's about, "Well we don't want those people having any authority over us." And because of that we have talking heads peddling outrage for the sake of being outraged that can turn something that we actually all agree on into a near cause for civil war.

I am not arguing that Congress doesn't have the authority to regulate immigration. I'm pointing out that strict constructionism implies that it doesn't. My point is that demanding strict immigration regulation while condemning all those "illicit socialist programs," for being beyond the scope of the original constitution is simply hypocritical.

 

I think the question is more whether or not there was ever such a thing as illegal immigration.

 

Hahahahahaha! You have to admire the inherent chutzpah of someone posing such a question when there are actually immigration LAWS on the books. Sheesh!

 

Lets go back throughout the history of the New World to date.

The early colonies required authorization from the King to be made, to enter into those colonies one had to have the kings permission. Later, the colonies required that one apply to enter the colony.

Things progressed, the Articles of Confederation, allowed for Article 4

Some states as late as 1850's incorporated the very wording of the Articles of Confederation into their state Constitutions. The USC, had pretty much accepted that very reasoning when it adopted Art 1 Sec 8.

The Schooner Exchange (1812) discusses immigration as one of two types

There has always been an acceptance and resistance of persons that entered and were allowed to partake of our rights and protections since the beginning of the colonies. http://immigration.procon.org/view.timeline.php?timelineID=000023

 

Sure, but are those laws really constitutional?

 

Why wouldn't they be? (see my post above)

 

Children unaccompanied by parents were added to the exclusion list in 1907.

 

Whether you like it or not the court has stated for nearly than 200 years that they are.

 

That point is erroneous and invalid. Regulating immigration is FAR closer to enumerated powers and the clauses that expand them than most of the illicit socialist expansion and centralization of our government. There is no tit for tat possible between say immigration laws and social security. Immigration laws are a perfect example of the legitimate intent of the interstate commerce and necessary and proper clauses, whereas many government power grabs associated with those clauses are not.

 

Firstly, we are discussing whether or not immigration laws are constitutional. Colonial laws and the Articles of Confederation are completely irrelevant, since the Constitution completely superseded their authority on Federal matters. You may as well try to cite the Magna Carta or the Justinian Code as the Articles of Confederation.

Secondly, when the colonies were established the people with the legal right to exercise sovereignty over those territories (at least by modern standards) were the current inhabitants - ie, the American Indians. With a few exceptions, none of the colonists arrived with the consent of the natives, so if you're going to be going down the road of Colonial laws, that makes pretty much the entire population of the US with European ancestry illegal immigrants.

Finally, the general conventions of European laws in the late eighteenth century is not especially relevant, since the Constitution was explicitly designed to overturn several of those conventions. Most notably it was designed to overturn the then universally accepted convention that sovereignty was derived from the authority of the monarch.

If you want to show that immigration laws are constitutional, you have to go to the Constitution. That's what the word means.

Incidentally, of course resistance to the arrival of new people goes way back. Xenophobia and racism are pretty deeply rooted in human nature and goes back to our evolutionary history. That doesn't make them admirable or even legitimate.

Really? The courts have explicitly ruled on the constitutionality of immigration laws? When? What decision?

There's no tit for tat possible between immigration laws and social security? Why? Because you like immigration laws and you don't like Social Security? Where's the difference? If it's not mentioned in the Constitution, it's not mentioned in the Constitution. You can't just insert words because it suits your politics. As soon as you start arguing that, "Well, the Constitution says X but it really means Y," you have abandoned strict constructionism. Period. That's what strict constructionism is.

The most fundamental principle of the Constitution is that the authority of any government is ultimately derived from the will of the people. Strict constructionism as it exists today is a fundamentally dishonest attempt to twist the words of the Constitution in a way they were never intended to be used in order to thwart the will of the people because you can't win honestly on the issues at the ballot box.

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Actually, the real question is why should it be illegal for those immigrants to enter the US in the first place?

 

So you fail to understand that immigration laws have been around since the colonies. The states instituted immigration laws, and in 1849 the feds took over by using the commerce clause (The Passenger Cases).

You have to understand the history of immigration laws, which is what I pointed out.

Are you aware that the natives granted land to the Jamestown Colony when they arrived? Most lands acquired by the English were granted by treaty or through trade.

OK, since that had nothing to do with anything that I stated or showed. I simply showed that immigration law has been in place in the US and prior since its inception. It was the king in the beginning, then it went to the colonies, then each individual state, and finally with the feds. Simple progression.

See my first quote above.

It didn't make them Xenophobic or racist. When people project today's views on to yesterdays history, they show a simple ignorance to what history actually was. Powhatan welcomed the English and gave them land to live upon, that makes them pretty legit in the beginning.

Since the beginning. The Schooner Exchange in 1812 recognized that

The Passenger Cases 1849

What portion of the USC is the determination for SS? HINT: it is a tax, just like the ACA, otherwise they would be considered un-constitutional.

You see, we have an instruction booklet for it, its called the Federalist Papers, and in other situations, as Justice Gay points out

According to the Schooner Exchange of 1812, their entry must be traced back to the consent of the nation itself, prior to that it was up to the individual states to allow someone entry or not, prior to that it was up to the colonies.

You must understand the laws as they date back to the colonies as per Justice Gray in WKA.

 

One is a direct logical consequence of the enumerated powers of the government to conduct foreign affairs, which this situation absolutely is, to regulate interstate commerce, which this situation absolutely bears on, to perform necessary and proper duties directly stemming from enumerated powers, which this situation entails, to provide for the common defense, to protect each of the states against invasion, to provide for national security, again, all indisputably reasonable context of immigration. All of these are fairly within the strict construction and express terms of the Constitution.

Now, try to found Social Security in the same way. You can't, no one can. In order to do so, the activist Court had to 1. eviscerate the 10th Amendment (surprise, surprise, one of SCOTUS' favorite historical hobbies), and 2. stretch the central taxing power in a patently illicit way similar to what was done with Obamacare, 3. over serious, reasoned dissent.

To my knowledge, the authority of the Federal government to regulate immigration or illegal immigration (and as an aside, to continually refer to illegal immigration as simply "immigration" identifies one instantly as a purposeful, partisan liar regardless of who engages in that particular corruption of language) has never been questioned in any legitimate way in jurisprudence. Not so Social Security. Illegal immigration flows directly from express Constitutional enumerated powers, SS most certainly does not.

The enumerated powers that bear on regulating immigration are express and legitimately enabled by the clauses. Your understanding of what "strict constructionism" is is faulty, else you can make the argument that the Air Force is unconstitutional and we should only conduct war on horseback.

The above is the grossest kind of simplification, because it contains no limitation on the "will of the people" and our system of government is specifically tailored to limit and regulate the expression of the "will of the people" where certain basic, "inalienable" rights are concerned. Actually sounds like something my idiot ConLaw professor would have babbled out while going on about the fundamental right to housing. But arguendo, you have a long way to get from there to the kind of judicial activism you are clearly trying to reach.

Empty, partisan gibberish.

 

Kessy the long and short of it is that we have had immigration laws on the books since before we were a country. Scotus has yet to find such laws unconstitutional or they we no longer be enforceable.

 

The Schooner Exchange v. M'Fadden Has nothing to do with immigration. It concerned the jurisdiction of US courts over a claim against a foreign warship in a US port. The bit you were quoting about "The full and complete power of a nation within its own territories," was talking about how a nation may choose to waive its jurisdiction in particular circumstances, such as extending diplomatic immunity to foreign emissaries or allowing friendly foreign warships to enter port. By what twisted logic can that be construed to have anything to do with immigration?

Considering that the Passenger Cases were decided in 1849, a full 60 years after the drafting of the constitution, it can hardly be considered as being "Since the beginning." Also, since the Supreme Court was unable to produce a majority opinion in these cases, its authority as legal precedent is problematic to say the least. For example, the Wayne opinion would seem to deem admitting or barring entry to specific individuals to be a police power, and thus the domain of the states. In addition, isn't the stretching of the Commerce Clause to include all sorts of things exactly the sort of "judicial activism," that strict constructionists love to complain about? Migration is hardly commerce in the usual sense of the word. Wouldn't your own principles demand that you condemn this abuse of the wording of the constitution?

Wouldn't demonstrating that laws regulating immigration had a long history at the time of the Constitution actually be an argument that the omission of the assigning of such powers to Congress should be taken as deliberate? You can hardly argue that the founders would have had no concept of the issue after attempting to demonstrate that the issue had been around for centuries at the time without making yourself look like a fool and a hypocrite.

You seem to be confused about what making historical judgements in context means. When judging the actions of a particular individual or group one most do so in the context of the standards and attitudes of the time. For example, it would be inappropriate to condemn a plantation owner in 1820 as a monster simply for owning slaves. On the other hand it is entirely appropriate to judge institutions and attitudes in the context of the totality of our moral understanding. Thus, it is entirely appropriate to condemn the institution of slavery as immoral.

Resisting the arrival of new people doesn't make one xenophobic? What exactly do you think xenophobia means? It is, by definition, the fear of the foreign and foreigners. Xenophobia and racism have been pretty endemic to cultures throughout history. It is one of the darker aspects of human nature that we must deal with. Or are you going to try to argue that racism wasn't endemic in the West until quite recently?

The conduct of foreign affairs is the relations between the US government and foreign governments. It is not the regulation of the behavior of foreign nationals while on US soil.

Migration is commerce only under a very loose definition of commerce. And immigration is not interstate commerce at all, it's foreign commerce.

Providing for the common defense? Protecting from invasion? Are you serious? So a bunch of kids turning themselves in to the border patrol is an invasion? What weapons are they carrying, hmmmm? Their genes, perhaps? Please explain to me how such statements can be construed as anything other than blatant racism spewing from the mouth of the filthy dregs of American society.

How is stretching the definition of "commerce" to include the movement of free people any less illicit then the stretching of taxation to include Social Security?

As Liquid Reigns has kindly educated us, the authority of the federal government to regulate immigration was challenged in the Passenger Cases. However, since when do strict constructionists care one whit for the rulings of the courts when they expand federal power? You are happily denouncing a program that has been established law for 80 years as unconstitutional.

As an aside, most of this discussion has been about the authority of the federal government to regulate immigration in general. To continually construe "immigration" to always refer to illegal immigration identifies one instantly to be a xenophobic piece of human garbage who can't think beyond, "Look at all the brown people coming here! We have to stop it!"

You can indeed make a very good argument (by the standards of strict constructionism) that the Air Force is unconstitutional, as is the Marine Corps. However, the constitution has nothing to say about horses one way or the other. I am using an reductio ad absurdum argument to demonstrate the sheer stupidity and inherent hypocrisy of strict constructionism.

So are you denying that if one of the major candidates for President campaigned on a promise to repeal Social Security that would produce the first unanimous decision of the Electoral College since George Washington? You are using a dishonest tactic to try to get your way when you have thoroughly, completely, and unequivocally lost the public debate.

Oh, I almost forgot. It's impossible to eviscerate the 10th Amendment, since it never had any viscera to begin with. It is an empty and redundant rhetorical flourish put in purely to placate those in power in the state governments at the time. And no, it does not grant any rights, powers, or anything else to the states. It says, "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." It is simply a recapitulation of the preamble, affirming that all authority under the Constitution is derived from the people.

 

SMH. Here, from Wong Kim Ark and Justice Gray once again in regards to US jurisdiction and the Schooner Exchange

http://www.law.cornell.edu/supremecourt/text/169/649

Immigration laws have been around since the beginning, it was in 1849 that the Feds took complete control of immigration. Prior to that they had the states running it on their instructions. SCOTUS unable to produce a majority opinion? Both cases were decided 5-4, that is a majority opinion. The majority opinion is set legal precedent their is no "problematic to say the least" about it. Maybe you simply mean unanimous? The Commerce Clause is just one example, another is as Texsdrifter pointed out: Art1 Sec8 Cl10

The founders did have the concept of immigration in mind, again, Art1 Sec8 Cl10, and if you were to read the Federalist Papers 42

So you do judge history by today's standards. Slavery, in the context you understand it to be, would only be immoral by today's standards.

So the Irish resisting more Irish coming is xenophobic? Or the Germans resisting more coming is xenophobic? Again, you apply today's understandings to yesterday. Something about hindsight comes to mind.

It has to do with foreign nationals entering our soil. Once on our soil they owe us a temporary allegiance and can be held liable for their misdeeds according to our laws, except those that are immune to our laws, such as ambassadors, etc.

Correct, foreign commerce can only be regulated by the feds.

projecting your morals onto others now?

The movement of free people within the US, not the movement of people into the US, which can be regulated by the Nation itself (The Schooner Exchange)

The power wasn't expanded, the power was already theirs, the feds simply allowed the states to regulate it for them previously. The Federalist Papers #42.

NO, your using an ideological argument to lay claim that shows you don't understand strict constructionism.

 

Of course they do. Even if you assume that this clause doesn't necessarily include immigration, there's also congress' ability to regulate things that cross state lines or effect multiple states in the name of interstate commerce. There's lots of theories under which you could justify immigration laws and evidence of interpretation is always relevant, there's always been immigration laws.