By way of public service, I'm occasionally moved to reiterate the simple fact that per the US Constitution there is no such thing as illegal immigration, at least at the federal level. And having reiterated it, I must necessarily re-explain it, so that those who haven't bothered to read the damn thing, or apply a fairly basic interpretational principle to it, or make even a cursory study of history, just might get it through their heads.
Let's start from the back end, with the history: From the ratification of the US Constitution, until the late 19th century, Congress made no laws regulating immigration.
The reason they didn't make any such laws is that they understood the Constitution as forbidding them to do so.
Naturalization (the process of becoming a citizen), they regulated, as the Constitution clearly empowered them to do. Ditto a small tax or duty on immigrants. Bills allowing federal port officials to enforce state immigration regulations, and collect fines/fees for doing so, they also enacted. But actual federal rules on immigration itself, zero, zip, zilch, nada.
That only changed after an activist Supreme Court miracled up a federal power to regulate immigration out of the justices' vivid imaginations in 1875 ... and even then, Congress was apparently suspicious enough of that fairy tale that for another 15 years or so it hung immigration regulations on treaty provision hooks. Much is made these days of Ellis Island as the federal "gateway to America," but it's seldom mentioned that when it opened in the 1890s, it did so as a replacement for the state of New York's immigration processing facility.
Let's take a brief break from the history lesson and look at that basic interpretational principle I mention: The meaning of a law is a function of "original intent" -- that is, what the framers and ratifiers of the law meant that law to accomplish.
Back to history, starting with the text of the three relevant constitutional provisions:
Article I, Section 9, Clause 1: 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.
Article V: ... no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article ...
Amendment X: 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.
The language is clear: Congress was not only not allowed to regulate immigration prior to 1808, it was not even allowed to amend the Constitution to strike that prohibition until 1808. After 1808, it could have proposed an amendment to allow it to regulate immigration, but until and unless it proposes such an amendment (it never has) and until and unless such an amendment is ratified (which has never happened), the Constitution deems immigration a state issue.
Are there any "original intent" -- or even "strict construction" -- loopholes in that interpretation? No. The issue was debated. Some of the anti-Federalists, who for the most part generally opposed vesting power in the central government, made an exception for immigration, urging that Congress be empowered to regulate immigration to protect "the national character." Their arguments were rejected for three simple reasons:
- The southern slave states viewed a congressional power to regulate immigration with suspicion, fearing it could be used to stop the slave trade;
- Pennsylvania, which was in the process of industrializing, required mass migration of unskilled labor to power that industrialization and had no intention of putting Congress in a position to stop its economic growth; and
- Without the votes of the slave states and Pennsylvania, the Constitution would, quite simply, never have been ratified.