Friday, June 25, 2010

A brief review of the history of US immigration law

Smitty detects a "dissonance ... when the word 'illegal' is used with respect to immigrants."

As well he should, since there's no such thing as an "illegal immigrant."

A law repugnant to the Constitution is void, the Constitution reserves powers not delegated to the United States to the states or to the people, and the Constitution delegates no power to the United States whatsoever to regulate immigration.

None. Zero. Zip. Zilch. Nada. Bupkus. It ain't there.

The anti-Federalists noticed it wasn't there and bitched about it (citing the lax moral climate of immigration-unrestricted Pennsylvania -- see the letters of "Agrippa," a/k/a John Winthrop) before the Constitution was ratified. The Federalists, favoring large-scale immigration from Europe, had no answer for them.

Congress operated for the first 89 years of the Republic on the assumption that since the framers hadn't seen fit to write such a power into the Constitution, they hadn't intended for Congress to exercise that power.

They passed naturalization laws, which the Constitution provided for.

They also passed a few laws which had the effect of making state immigration laws binding on ships entering federal ports in said states (and assessing fees/fines for enforcing those laws on behalf of those states).

But federal regulation of immigration as such was non-existent.

It wasn't until 1875 that an activist Reconstruction-era Supreme Court utilized its magical powers to "discover" a federal power to regulate immigration (a power that Madison, Hamilton, Jay et al had apparently somehow put in there without knowing it or noticing it or ever even once mentioning it), and it wasn't until 1882 that Congress exercised that newly discovered power with the Chinese Exclusion Act.

The subsequent 128 years of American history have been a living demonstration of why the framers left a federal power to regulate immigration out of the Constitution -- because it was, and remains, one of the fucking stupidest, most destructive ideas imaginable.

Update: I see this article is being discussed over at the Indiana Gun Owners forum. Cool! One of the participants asks:

If the authors thought that Congress did not have an inherent power to regulate migration, why would they put in a temporary limit?

Referring, of course, to the Article I, Section 9 prohibition on Congress interfering with the slave trade between ratification of the Constitution and 1808. "The Monster" brings up the same question over at The Other McCain, where this very article started off as a comment.

It's a good question -- but it answers itself.

There are not one, but two, "time-limit prohibitions" in the Constitution. Per 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

The first clause in Article I, Section 9 is the aforementioned prohibition on regulating the slave trade (which was really "migration" in the same sense that a slave was really 3/5ths of a person, which is to say not at all except for purposes of immediate political expediency in getting the slave South to join the non-slave North in the compact).

The fourth clause in I/9, also protected from amendment until 1808, is the prohibition on direct taxes.

I'm unaware that anyone seriously argued that an inherent power of direct taxation existed in the Constitution and could be exercised without amendment once 1808 arrived. Lincoln tried it in the Civil War, and I think there may have been another brief attempt in the 1890s, but ultimately pretty much everyone accepted that it took the 16th Amendment (ratified in 1913) to make an income tax constitutional.

Ditto immigration: Congress, including some Congresses in which original framers of the Constitution served, refrained from regulating immigration until 1882 because they didn't think the Constitution allowed them to do so until the Supreme Court told them otherwise in 1875.

An explicit prohibition does not an implicit general power automatically affirm.

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