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

Immigration History: Naturalization and Deportation

Previous: The Constitution

Exercising its authority to enact a uniform law of naturalization, Congress passed a naturalization law in 1790 which allowed any white alien over twenty-one to petition for citizenship after two years of residence provided that they had "good moral character." The residency requirement was lengthened to five years in 1795.

Then, in 1798, Congress passed and President John Adams signed the Alien and Sedition Acts. Most known for their attempt to suppress criticism of the government, these acts also had naturalization and immigration implications. Motivated in part by the fear of a war with France, and the increased levels of immigration from France after the French Revolution, these acts increased the residency requirement for citizenship from five to fourteen years. They also permitted the President to order the removal of any alien that the President determined was "dangerous to the peace and safety of the United States" and required all ship commanders, upon arrival at any United States port, to report any aliens on their ships. Finally, in the event of a war, the President was authorized to proclaim that all non-citizen male aliens who were subjects of the hostile government could be "apprehended, restrained, secured and removed, as alien enemies." This last provision remains in effect today at 50 U.S. Code § 21 and was used during World War II against Japanese, German, and Italian nationals.

These laws were immediately unpopular and only loosely enforced and I was unable to find whether any deportations actually took place during this era. Ultimately, many of the more objectionable portions expired.

In 1802, Congress again revised the naturalization requirements, this time moving the residency requirement back down to five years. It also required all aliens who sought citizenship to report  to the clerk of their respective District Court at the time of their migration, who in turn kept a record of all aliens migrating to the jurisdiction. Although many of the details and other requirements have been tinkered with, this five year residency requirement remains in place today at 8 U.S. Code § 1427.

However, during this entire era, there were no federal restrictions on who could enter the country. Instead, such restrictions were left to the states.

Next: State Based Policies

Immigration History: The Constitution

Previous: Before the Constitution

As explained previously, the lack of a national naturalization policy in the Articles of Confederation was one of the motivations for adopting the Constitution. The Constitution fixed this deficiency in Article 1 Section 8 by granting Congress the power "[t]o establish an uniform Rule of Naturalization."

However, there was no corresponding grant of power to Congress to establish or otherwise restrict immigration. The closest the Constitution comes is in Article 1 Section 9, where it provides:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This clause is widely interpreted to be a reference to prohibiting the slave trade, nothing more. And in fact, relying on this clause, Congress passed and President Jefferson signed legislation prohibiting the slave trade in 1808.

During the ratification debates opponents of the Constitution attempted to argue that this clause could be used to "prevent voluntary and beneficial emigrations from Europe to America." James Madison in Federalist No. 42, after affirming that it was directed at the slave trade, dismissed, among others, the immigration argument: "I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government."

Now, the Constitution only granted the new national government limited legislative powers. It specifically states in Article 1 Section 1 that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (emphasis added). This is in contrast to the opening of Articles 2 and 3, which grant "[t]he executive Power" and  "[t]he judicial Power" to the President and the courts, respectively. Unlike the other two, the legislative grant of power is limited, not plenary. And were there any confusion about this, the Tenth Amendment was added: "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 here's the problem. Under the Constitution, Congress has limited legislative powers, and those powers do not explicitly include the power to regulate immigration (remember, immigration is distinct from naturalization). So to the extent that immigration restrictions are classified as legislative, there is a significant problem.

There are a few ways around this. If immigration restrictions are somehow "necessary and proper for carrying into Execution" the naturalization power, it could be included there. Or if immigration is considered part of commerce, it could be regulated through the commerce clause. And there always is the slave trade clause. However, none of that is clear from the founding era or founding debates. Consequently, under a strict textualist approach, an argument remains that Congress has no Constitutional authority to legislate an immigration policy.

Hold that thought, for we shall return to it. It will take the judicial branch nearly a hundred years to sort it out.

Next: Naturalization and Deportation

Happy Thanksgiving

In her book Team of Rivals: The Political Genius of Abraham Lincoln, Doris Kearns Goodwin tells the story of Abraham Lincoln's Thanksgiving proclamation of 1863.

Fred Seward recounted the events of one morning in October 1863 when his father [Secretary of State William Seward] called on Lincoln. "They say, Mr. President, that we are stealing away the rights of the States. So I have come to-day to advise you, that there is another State right I think we ought to steal." Raising his head from his pile of papers, Lincoln asked, "Well, Governor, what do you want to steal now?" Seward replied, "The right to name Thanksgiving Day!" He explained that at present, Thanksgiving was celebrated on different days at the discretion of each state's governor. Why not make it a national holiday? Lincoln immediately responded that he supposed a president "had as good a right to thank God as a Governor."

The proclamation itself is below:

Washington, D.C. 

October 3, 1863 

By the President of the United States of America. 

A Proclamation. 

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union. 

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed. 

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth. 

By the President: Abraham Lincoln 

William H. Seward,
Secretary of State

Happy Thanksgiving! 

Immigration History: Before the Constitution

Previous: Preface

As any good political historian, I must begin where our country began: the Declaration of Independence. Reviewing that document, we find that one of the charges lodged against the King was that he interfered with immigration to the colonies. Specifically, Jefferson wrote:

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 migrations hither, and raising the conditions of new Appropriations of Lands.

Before going into the background of this complaint I must emphasize very strongly that naturalization and immigration are not the same thing. I have lost count of how many times I hear the two confused. The rest of this post, not to mention the rest of this series, will make no sense unless we establish here at the onset that naturalization and immigration are distinct.

So what is the difference? Think of it as a two-step process. Immigration is the act of moving to a new country with the intent of remaining there permanently. It is a question of presence. Naturalization is the process of becoming a citizen of that new country, and sometimes citizenship was necessary to own property. It is a question of political participation. Normally, naturalization has a residency requirement, such as five years. Which means that to become a naturalized citizen, a person must have immigrated five years prior to submitting the application. However, not every immigrant because a naturalized citizen, and there is no requirement to do so. If they so choose, they could remain an un-naturalized alien indefinitely.

Alright, with that out of the way we can return to the Declaration. We see both principles at play in Jefferson's complaint: interference with naturalization and failure to encourage immigration (migration). While I could find no evidence of British restrictions on immigration from the colonial era, there was ongoing tension between Parliament and the colonies over the question of naturalization of foreigners. Remember, as British colonies, "foreigners" were immigrants from places other than Britain.

Initially naturalization rules were set by each colony. For example, here are overviews of the naturalization (traditionally a grant of citizenship by Parliament or legislature) and denization (a quazi-citizenship traditionally granted by the King or governor) laws for colonial Virginia and New York. These laws, however, only granted citizenship for the granting colony, not for Britain. In 1740 the British Parliament, tired of the irregularity in the colonies passed its own rules for naturalization which overrode any colonial rules to the contrary.  This act had a seven-year residency requirement, and applied uniformly across the colonies. Other tinkering with naturalization laws followed thereafter.

The colonies, however, could and did encourage or limit immigration. Massachusetts, for example, in 1700 adopted a rule that each new ship had to report all passengers, and shortly thereafter implemented prohibitions on the migration of "poor, infirm, or vicious people." (Carpenter, 296). In contrast, many of the southern colonies sought to attract immigrants by offering land-grants, and South Carolina went so far as to refuse to enforce any pre-migration debts of immigrants. (Id.) Virginia, South Carolina, North Carolina, and Georgia also instituted prohibitions on debt collection for a period after migration to give new immigrants a chance to establish themselves. (Risch, 2-3).

Overall it appears that the colonies believed that immigration was good and sought to encourage it--particularly the immigration of the right types of people. Sometimes they would even offer naturalization as an inducement to immigration (Risch, 9), which could explain the hostility toward Parliament's setting of a uniform naturalization policy. Yet as British subjects, the colonies were still under the British naturalization laws.

All this changed with independence. With independence, the new nation could no longer rely on the foundation of British naturalization law. However, the Articles of Confederation never mentions immigration, and citizenship appears only in Article IV:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, 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 free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

Instead of a uniform rule, each state continued to the colonial way of setting its own naturalization requirements. In Federalist No. 42, James Madison stated that this state-based approach "has long been remarked as a fault in our system" due to the differences between states as to who is a citizen and confusion as to how citizenship can transfer between states. The lack of a uniform rule for naturalization became one of the motivations for drafting a new Constitution. However, there was no similar discussion regarding lack of a uniform rule of immigration, nor does it appear that the state-based immigration structure significantly changed after the Revolution.


Next: The Constitution


Sources:

A. H. Carpenter, "Naturalization in England and the American Colonies," The American Historical Review, Vol. 9, No. 2 (Jan., 1904), pp. 288-303.

Erna Risch, "Encouragement of Immigration: As Revealed in Colonial Legislation," The Virginia Magazine of History and Biography, Vol. 45, No. 1 (Jan., 1937), pp. 1-10.

Immigration History: Preface

President Obama's immigration announcement last week has divided constitutional scholars and political commentators. I've already written about my own indecision over the matter.

However, as much as it may look like an executive power grab, and as self serving as the Department of Justice's supporting memo may be, I have yet to see a persuasive response that seriously addresses the President's historical and legal arguments. Instead, what I have seen are very general statements about the apparently obvious "unconstitutionality" of the President's actions with no discussion about the dubious "constitutionality," strictly speaking, of the immigration structure as a whole. I've also seen statements attempting to distinguish this President's laxness in enforcing the deportation laws from prior Presidents, such as Reagan and Bush, doing the same things. Yet saying that this time it's different doesn't necessarily make it so, especially if the only difference is one of scale and not principle.

In short, instead of hearing sound criticisms of the President, I am hearing inadvertent declarations of ignorance about immigration law from the conservatives. This will never do if we want to be taken seriously.

So in light of this deficiency, I'm planning to take the next few weeks (or months) to introduce our readers to the history of American immigration law, its suspect origin, its inconsistent application, and its overall mess. Highlights will likely include:

• Whether there is any authority in Article I of the Constitution for the legislature to create an immigration policy;
• How for a time states had the ability to set their own immigration policies;
• How an anti-immigrant stance by one of his rivals led to President Lincoln's nomination;
• When strict enforcement of immigration laws resulted in returning a boat full of Jewish refugees to Adolf Hitler;
• The times that presidents allowed large numbers of immigrants to enter without legal status in response to Communist takeovers of their home countries;
• The time a chain of churches offered sanctuary to refugees who had no legal status, and through passive action successfully turned away immigration authorities; and
• The hurdles and waiting lists that immigrants currently face.

I still do not know whether the President's action is constitutionally permitted, but what I can say after the last several days is that each article attempting to persuade me that it is, or is not, has pushed me toward the opposite conclusion. So part of this series is my own attempt to learn more about the history of our immigration system. I do not fully know where this series will go, nor how long it will take to complete. But I hope that you will join me for the journey. In the meantime, check out our prior immigration posts, especially the one laying out some groundwork for the immigration debate.

Next: Before the Constitution