Thread: Congress has NO jurisdiction over immigration or asylum

http://federalistblog.us/2006/07/delega ... ation.html

Is this why former Texan Bush does not enforce Federal Laws against illegal immigration?

I guess if we followed this idea out logically then the wackos in New York or the Pacific NW could establish havens for aliens. I couldn't say "illegal aliens" because if the state law did not hold them as illegal, there would be no higher authority that could.

There is one paragraph the article cited which ends in "that the powers not delegated to the United States by the Constitution, nor probitiited by the states, are reserved to the states respectively, or to the people."
What does "or to the people" denote, then? This seems like kind of a vague catchall. I can't imagine any law exisitng outside of legislative intent by some branch of government, so I am not sure what "or to the people" would refer to.

It's an interesting argument for individual states to have immigration laws which they can enforce. But this would apply to any immigrant, legal or not, so it could turn into confusion if an admitted immigrant wanted to move.

Any thoughts?

Here's the article from the link above:

The US Constitution Only Delegates the Power Over Immigration or Asylum to the States


Updated 7/24/07

Pima County Attorney Barbara LaWall on behalf of herself and several other county attorneys and sheriffs, recently said a Arizona proposed immigration provision is an unconstitutional intrusion by the state into immigration policies, which are solely the purview of the federal government. This struck me kind of odd because in order to come under the purview of the federal government the authority must be found delegated or, incidental to a delegated power granted to Congress under the US Constitution. There is a significant reason why Congress has no delegated power leading to jurisdiction under the US Constitution in matters of immigration or Asylum.

To better understand why this is so we need to go back to the founding of the United States of America and consider Article II of the Articles of Confederation that read:

Each state retains its sovereignty; freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Prior to the adoption of the current Constitution, which was intended to correct for deficiencies found in the Confederation (hint: "to form a more perfect union"), States decided for themselves who could reside and later become citizens within their limits. This was simply a function of sovereignty each State enjoyed and had no intention of surrendering to the national government.

During the Constitutional Convention of June 16, 1788, George Mason asked if the new Constitution would secure and guarantee the rights the States then currently enjoyed. Said Mason:

But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction.

Many gentlemen, whom I respect, take different sides of this question. We wish this Amendment to be introduced, to remove our apprehensions. There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States. This clause has never been complained of, but approved by all. Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration that every thing not given is retained, it will be carried to any power Congress may please.

It was this very apprehension that we find the Ninth and Tenth Amendment under the US Constitution today. The Ninth and Tenth Amendments taken together provide for interpreting the Constitution while also defining the sovereignty of the republic.

The Ninth was intended to preserve all rights under existing state laws as of 1791, and those rights, which States would later enact. The Tenth guaranteed to the States their ability to exercise their powers based on the sovereignty of the people to self-government. The Ninth Amendment looks to the past, the rights retained, or that will be retained by the states. The Tenth Amendment acts to prevent encroachment by the national government upon the States via the exercise of a non-delegated power.

Thomas Jefferson forcibly tells us what the States retained under the US Constitution in regards to immigration:

Resolved, That alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved, to the states, respectively, or to the people," the act of the Congress of the United States, passed the 22d day of June, 1798, entitled "An Act concerning Aliens," which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

Because the States decided they would retain their own laws, customs, independence and sovereignty, the federal government was left with no powers to meddle within the States. James Madison explained the entire compact this way:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Madison in the Virginia Resolutions further reminds us of the limitations imposed upon the Federal government:

The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 10th amendment, now a part of the Constitution, which expressly declares, "that 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 federal government was given popular national sovereignty over all external objects outside of the States, such as being able to speak in one voice on behalf of all the States in foreign matters, power to make treaties on behalf of the States, print money, etc. Because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congress no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.

After the current Constitution was adopted, it was the State governors or other local authorities who issued passports for foreign travel abroad and not the federal government because no such power was delegated to the national government. In 1856 changes were made for the issuance of passports by Congress not on Constitutional jurisdictional grounds, but because diplomatic agents of foreign governments in the United States required passports granted by the States to be authenticated by the ministers or consuls of the United States.

The above simply illustrates that no one was under any illusion that the US Constitution somehow magically made the issuance of passports for foreign travel of US citizens solely the purview of the federal government. Certainly then, if the power was retained with the States to issue passports for foreign travel they also retained complete control over foreign entry within their jurisdiction.

The same Congress that had passed reconstruction acts after the civil war, including the 14th amendment, required rebel State Constitutions to conform with the US Constitution before being re-admitted into the Union. Texas, like other States, had elected to form its own immigration bureau for managing immigration within State limits. Article XI of the pre-approved Texas Constitution of 1869 read:

SECTION I. There shall be a Bureau, known as the "Bureau of Immigration," which shall have supervision and control of all matters connected with immigration. The head of this Bureau shall be styled the "Superintendent of Immigration." He shall be appointed by the Governor, by and with the advice and consent of the Senate. He shall hold his office for four years, and until otherwise fixed by law, shall receive an annual compensation of two thousand dollars. He shall have such further powers and duties, connected with immigration, as may be given by law.
Congress could attempt to pull some implied authority over the migration of people within the jurisdiction of a State through the Necessary and Proper Clause, but this would require finding a delegated power that can breach the sovereignty of the State to do so. The power to make uniform rules of Naturalization will be of little use for a number of reasons. The principle reason is because it is simply a power to make rules for giving or withholding citizenship to an alien already residing within a State.

Liberal construction of the Naturalization Clause is made difficult because it was introduced to the constitutional convention to specifically give the Federal govt. "the exclusive right of declaring on what terms the privileges of citizenship & naturalization should be extended to foreigners." Clearly then, it was never a power given over anything remotely dealing with the physical presence of aliens within a State, only deals with the citizenship aspect once they decide to seek citizenship after the migration to a State.

The Supreme Court held in both Smith v. Turner and Norris v. Boston that the power to make uniform rules of naturalization "has nothing to do with the admission or rejection of aliens, nor with immigration, but with the rights of citizenship."

Naturalization used to be solely carried out by the States themselves but Congress had to pretty much federalize the Naturalization process because of massive fraud and bought State judges as a result of the Irish waves. The Irish decided if they wanted to continue flooding New York unmolested by State laws they needed instant political power -- and to get political power they needed to come up with lots of citizen voters very quickly.

The federal government or the courts could claim immigration is an "incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it..." The problem with this line of reasoning is that the U.S. Constitution by design greatly limited the sovereignty of the federal government, leaving the government to exercise well-defined sovereignty, while the rest was left to the States to exercise.

For example, the U.S. Constitution granted the federal government sovereignty power to make war, maintain armies, mint money, levy duties on imports, receive Ambassadors and other public Ministers, establish post offices, make treaties, etc. Nothing can be found that authorizes the federal government to exercise sovereignty over foreigners within a State, as the original 13 colonies did not intend to leave the federal government with a blank check when it came to defining sovereignty.

A State exercising sovereignty over internal domestic matters of the State cannot be ousted by the federal government under the supremacy clause. This is because supremacy is limited to only those powers defined or withheld from the States. If the power is not delegated to the national government or withheld from the States, then States have supremacy over anything the federal government might decide to legislate upon (9th, 10th amendments).

Congress would be on firmer ground in guarding against unauthorized entry of aliens then they are in authorizing their entry. Consider for a moment that one of the few powers delegated to Congress is the power to "define and punish piracies and felonies committed on the high seas." This means Congress could define as a crime the importation of unauthorized immigrants who are neither wanted or needed within any of the several States of the Union.

Congress has no option of resorting to the already comically abused commerce clause in exercising any authority over aliens within the States as evidenced by the courts shift over the years in claiming national sovereignty gives them authority. This is mainly true because the power to regulate commerce with foreign countries, between the States and Indian tribes is identical. This essentially means then, if Congress wants to find immigration a thing of trade in commerce (slavery anyone?) between the States, they then could also conceivably find they have the same power with foreign nations as between States to flood any country on the planet with immigrants under the clause (all in the name of regulating commerce with foreign nations, of course).

As one might suspect, Congress has no constitutional authority to issue green cards to immigrants either. The States are the only authoritative entities that can issue green cards and offer residency within their limits. In a sense, there really is no such thing as a "legal immigrant" as a result of acts of Congress because Congress has no legal basis to make anyone a legal resident within the States -- only the States do.

Some might be alarmed to think the Federal government could have no control over who enters or resides within a State, but really if our Constitution upheld and the principles of our republican form of government is followed, current problems associated with absorbing millions of immigrants would be limited.

Consider for a moment if California decided she wanted to have an open border policy and encouraged and welcomed millions of immigrants from Latin America to immigrate. California could then issue resident cards, make rules and regulations governing its foreign population, and most importantly, be stuck with all the costs because the Federal government really would have no authority to raise and spend tax dollars to support California's foreign population (another non-delegated power). Wouldn't take long for Californians to begin questioning whether an open border is a good thing.

Consider also California would have no way of relieving itself of its own internal generated burden because other States could constitutionally refuse non-citizens from residing within their limits, making it harder for California's self-inflicted woes to migrate to other States. California would then be forced to withdraw the privilege of residency to foreign immigrants within the State -- forcing the State to enact responsible laws governing foreign residency.

Congress then could apply checks upon California through naturalization rules, such as limiting the number of citizens to be naturalized and other conditions. Our form of government really would work well for us if Congress and the courts would let it work as intended under the great social compact in which established our republican form of government.

What is really lacking for Congress is an exclusive authority to "exercise exclusive legislation" within the States that could open an avenue in exercising powers over the migration of people and residency within the States. Unfortunately for the Federal government, our Constitution only provided this authority over the District of Columbia, federally owned land and no where else.

Many confuse early American immigration legislation as a sign Congress had always exercised absolute jurisdiction over the subject. This is plainly false because early legislation dealt with encouragement of immigration into the large territories that were not yet formed into statehoods with their own laws, courts and constitutions. In other words, Congress had complete monopoly over the territories under its jurisdiction.

During the nineteenth century Congress never attempted to legislate over immigration matters within the States because they recognized the Constitution gave them no power over forcing foreign migration into each of the State jurisdictions. Once the territories were carved up into States the federal governments control over immigration into the country decreased proportionately.

President Grant was sympathetic to the treatment of immigrants once they reached the shores of this country, but told the House in a memo that national legislation over the subject would be unwise because the federal government was prohibited from interfering with immigration matters within the limits of the States. Said Grant, "responsibility over immigration can only belong with the States since this is where the Constitution kept the power."

President Andrew Jackson said the "Constitution, which was established for the benefit of our own, not of a foreign people: if in the latter, then, like other citizens or people resident within the limits of the States, they are subject to their jurisdiction and control."

This all leads to several big questions for the U.S. Supreme Court: When did the States surrender their power over immigration to the Federal Government? Where can this surrender be found documented in the US Constitution? The judiciary is neither a legislative body nor does it have the authority to transfer sovereignty from one political body to another without either’s consent.

The great Chief Justice John Marshall reminds us that the "Constitution of the United States is one of limited and expressly delegated powers which can only be exercised as granted, or in cases enumerated." For Congress, there is no expressed or implied grant of power over the approval of foreign asylum seekers or immigrants to enter State limits -- no more then is there the power for them to insist upon Tokyo to accept one million refugees. As Jefferson would say of today's laws over immigration, "is not law, but is altogether void and of no force."