Immigration is not a Federal Power

[see the first companion article on State power over Immigration and the third companion article on States’ Actions on Immigration]

Supreme Court Basis

In 1875 an key case in immigration law was reviewed by the Supreme Court.  Chy Lung v Freeman essentially established Federal supremacy over immigration issues.  The Court’s reasoning was that a state could not supersede Federal power in regard to relations with other countries.  Article I Section 8 enumerates powers of Congress, including

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and

“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;”

The President is empowered in Article II Section 2

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”

States are also prohibited in Article I Section 10

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin” and

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws:” and

“No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

However, in addition to these Constitutional provisions about Treaties, Alliances and to regulate Commerce that the Federal government does control with some exceptions, the Constitution leaves States with other powers, like the inspection of goods and persons entering into their states.  The purpose of these inspections is two-fold:

  • Taxation, including inspection fees, the remainder for Federal coffers, and
  • Safety of things and people being imported so that they might be excluded (sent back)

The Supreme Court has reiterated the authority of states to protect its citizenry from unsafe people and things in Chy Lung v Freeman, and to prevent undue burden on the local communities and the state of those persons who might become a public charge:

“If a state law, in the absence of congressional legislation, is enacted to protect itself by necessary and proper laws against foreign criminals, it may be constitutional as long as it arises from a vital necessity.

and in Henderson v Mayor of City of New York the Court did not rule, instead

“Whether, in the absence of such action, the States can, or how far they can, by appropriate legislation, protect themselves against actual paupers, vagrants, criminals, and diseased persons, arriving in their territory from foreign countries, we do not decide”

… but in Smith v Turner the Court clearly laid out for public health reasons

“9. That the States of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports, or ports within the United States, from landing passengers and goods, prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precautionary regulations to prevent vessels engaged in commerce from introducing disease into the ports to which they are bound, and that the States may, in the exercise of such police power, without [48 U.S. 283, 415]   any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the State the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board.”  and in addition on paupers, vagabonds etc.
“examine whether any of them are lunatics, idiots, maimed, aged, or infirm, incompetent to maintain themselves, or have been paupers in any other country, and not permit such persons to be put on shore, unless security shall be given that they shall not become a city, town, or State charge. This is the exercise of an unquestionable power in the State to protect itself from foreign paupers and other persons who would be a public charge; “

The Supreme Court has reiterated “in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad

Discussion

As previously described in another [article], the Congress is limited by Article I Section 9 when it comes to making Federal laws that override States’ ability to decide whom to admit (and limits their involvement to imposing a tax on bringing in such Persons):

“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.”

While the intention of this clause in the Constitution was obviously directed at slaves, temporarily or more permanently brought into the US, for 20 years after the signing, it did introduce the precedent that the several States have a right to determine who would be proper to admit to their state.  State laws, then, establish who would be properly admitted.

It can easily be seen that this restriction on Congress does not apply to apply to States admitted to the Union at the time of the signing.  But does this mean that those new States could never be overridden by Congress or just that they could be prohibited before 1808 from importing slaves or others?  The contentious question of slavery, even at the time of the signing, was not resolved, and would not be resolved for several more decades.

Indentured servitude, including to the state by convicts, was a recognized status for persons, but the egregious practice of treating the offspring of slaves as slaves and turning free men in other countries into slaves in the US, not by choice (indentured servitude) eventually led to the Presidential edict that slavery was over without compensation.  Of course, this ignited the Civil War.  If only Congress could have banned involuntary slavery from the inception of America.

All this discussion of States’ rights versus Federal powers in light of Supreme Court opinions leads us to conclude that while taxation of foreigners entering the US is strictly within the purview of Congress and that foreign dignitaries defined by Congress would be exempt from vetting or that treaties could override state laws for certain foreign persons meeting specific conditions, states do have the otherwise unrestricted right to inspect people to protect themselves from the unhealthy, criminals, and paupers or those who might become a public charge.

States may also claim compensation (charge those arriving) for these inspections, except of course for those persons exempted Constitutionally, although any excess “profit” must go to Treasury.  If the State performs these inspections as an agent of and under authority of the Federal government, it is clear that the Federal government must compensate States for any functions the State performs on its behalf, if authorized.

Becoming a public charge is related to the economy and the job market as well as the capabilities and skills of the person under consideration.  So, these employment factors must be considered in the location the person expresses his desire to be located.  If the applying person immigrating or visiting is to be employed in an area where unemployment is high or the expressed skills of the person do match enough to make employment likely, the person may become a public charge.

A similar consideration should also be given to the health threat factor.  It is not only about the current condition of the person but also the healthcare facilities in the geographic area the person expresses a desire to relocate into.  A family or potential employer can commit to warranting that the person (or his charges and wards) will not become a public charge.

Lastly, in similar fashion housing and education, especially of the person’s charges or wards, should be considered in light of whether the person or his charges would become a burden on the public.  While a family can commit or warrant they will give housing or needed education to the person and his wards, an employer can, too.  This would deal with concerns about the person or his wards becoming a public charge.

Conclusions

This Court-recognized power to inspect arriving visitors and immigrants leads us to the conclusion that States have the power to reject and eject those found unsuitable, although those rejected may cure the reason for rejection by, for example, posting bond or having others post bond for them or commit to support the person and his wards otherwise.

Counting heads, determining ethnicity or race, allocating available places to nations or other interfering in claimed Federal powers is not necessary or proper for States, but the above-mentioned conditions that might lead to an admitted person becoming a public threat or public charge are legitimate State powers and supported by case law.

Note that sole Federal power over “an uniform rule of Naturalization” means that States still grant Citizenship (which in turn makes them US Citizens), but only according to the rules Federal law authorize which must be uniform, as described in the related [article].

On the other hand, Federal power cannot override these legitimate areas of State power, simply by claiming that sole power to regulate international relations lies with Federal authorities.  Actually, in case of those exemptions that Federal authorities legitimately lay claim to: consuls, diplomats, etc., that sole power brings the sole responsibility for them not becoming a public threat or public charge.

If a diplomat should become criminal, Federal authorities must protect the public, not State authorities, for example, even though it may entail 24-hour surveillance on their part.  This is not an optional obligation, although the Federal authorities may delegate such power with just compensation to the States.  The same is true for health threats from exempted (diplomatic) foreigners, as well as housing and other areas of intercourse of those exempted classes with the State.

A gray area will remain in employment for family members or others accompanying a diplomat.  If Federal authorities claim exemption for that party, State authorities cannot regulate them in employment, but Federal authorities must not interfere in proper effective operation of local laws.  In effect, Federal agents become enforcers of State and local laws and regulations over their exempted individuals.

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Immigration is a State Power

[see the companion article on Federal power over Naturalization & Immigration]

Processing Time vs Waiting Time

I don’t think it should take more than 90 days to decide if a state is going to accept an immigrant-applicant. Why does it take years?

If an applicant to visit or immigrate has a clean background (which doesn’t take years to verify) and has a guarantee of support (aka Affidavit of Support) from a relative or perhaps a business, the applicant’s application should be granted immediately.

The Federal Government inserted itself in Immigration

Yes, the Feds have imposed limitations on how many people from each country can come in to work and live here and (if it were their responsibility) they should verify the identity of the applicant and confirm that someone will keep them from being a burden on the local economy where they’re going to live.

So, not all of the 7 years now required to approve an immigrant visa is from processing.  Instead, the queues for some countries are actually that long.  If only 4,000 immigrants from some obscure place are allowed each year to enter the US per Federal law and 100,000 are on a waiting list, we can pretty well know it will take around 20 years for a visa to be approved.

This delay is despite the fact that a family may be able and willing to support a brother, a mother, a sister, a father or a cousin with housing, money, and social support.

[see also the companion article on Federal power over Naturalization and Immigration]

The Local Community has an Impact

So, the state where the person is planning on immigrating to should also look at housing to see if sufficient housing is available in the local market, to see if employment is feasible in the local market, and to see what government services would suffer adverse impact by the immigrant’s arrival in his desired target community, such as education.

But other factors also play a role like availability of healthcare and commercial businesses to provide goods and services and infrastructure for communication and transportation.  It is the government’s job to provide this information to prospective applicants, but it is not the government’s job to solve any problems, unless the government accepts the applying immigrant.

The State writes the laws, publishes the regulations and administers these for the benefit of its citizens.  It is solely responsible for advising communities if an applicant has a driving record, a drinking record, an employment record and so on that might bear on his integration into the community.

On the other hand the local employer knows if he has positions open and what skill sets he needs, the schools know if they’re at capacity or could handle 2 more elementary or secondary students, and so on.  So, the locals have the responsibility to advertise when local conditions are conducive to immigration or not.  This information belongs in the hands of the applicant, too.

Federal Bureaucrats vs State & Local Bureaucrats

Of course, so many people believe that the Constitution grants Congress the power over Immigration – it doesn’t. The Constitution lists an enumerated power to make all State naturalization laws uniform.

This shows where Congress has that power A(n) Uniform Rule of Naturalization but you won’t be able to find in the Constitution the word “Immigration” or “Immigrant” or any other variation of those or other terms for those who want to come to America to live, anywhere.  That’s because Immigration has always been a State power.

Back in 1789 Washington didn’t have Border Patrol agents located all along the newly independent colonies to administer an Immigration code. States were expected to decide whom they would allow in, whether they were criminals, whether they would be a burden on the local society, and so on.

States Grant Citizenship under Uniform Federal Rules

So, while the Feds could force all States to have uniform rules for turning an immigrant into a citizen, they didn’t ever have the power to grant admission to the US.

Even the oft-cited 14th Amendment makes it clear US Citizenship is a consequence of State Citizenship.

” All persons born or naturalized in the [several] United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. “

Being a citizen of Arizona makes a person a citizen of the United States, no matter where they move to, for example.  But note that being a resident does not make one a citizen.  And “just visiting” isn’t being resident, either.

So, how long must a visitor be present to be considered “resident” and how long must he be resident to become a “citizen”?  States decide the former and the Feds can write a law for the latter.

Road Trip through Alabama

For example, if someone drives through Alabama on their way to Florida, they’re just visiting Alabama (and maybe Florida, too).  Visitors are accorded equal protection under the law, the local law, but they obviously can’t vote.  Visitors may also have less access to things, like borrowing books from the library.

If these visitors want to work, can the state restrict their employment?  Legally, yes, but usually states don’t interfere in right to work states, if someone shows up from out of town and wants to wield a broom, so be it.  What if the visitor is not a US citizen but someone from another country?  Are they afforded the equal opportunity of employment of citizens?  A Federal Attorney General has claimed they do.  But that’s absurd.

At some point a US citizen residing in Alabama will become resident, and in the process gain the right vote, perhaps gain borrowing rights at the library and so on, but normally he must claim that bundle of rights by turning into an Alabama citizen.  He surrenders his other worldly license to drive, say, Montana, and gets a shiny new AL driver license.

He may also get a voter ID card or other government identity card, like concealed carry permit.  There is a peripheral issue here that one state may grant a concealed carry permit, while the adjoining state won’t recognize it, despite Constitutional assurance that legal actions in one state will be Honor other States' Actionshonored by other states.  Guns in particular are a sticky matter since they may fall under the purview of the 2nd Amendment, where the right to bear arms shall not be infringed.

Concealed Carry is a State Law

Some 45 states (maybe more now) provide for open carry of firearms by citizens, but concealed carry is usually more restricted.  This may cause some problems carrying a weapon across state lines, especially if concealed.

Immigration vs Naturalization

This means States decide on Immigration issues and can later naturalize that resident according to uniform rules prescribed by Federal law.
Who, then, protects borders from unfettered immigration?

Can the Feds take a busload of border-crossers from El Paso, Texas, to San Diego, California, in the process crossing New Mexico and Arizona without getting permission from the 4 states involved to bring those “children” in?

NO.

This is a gross over-stepping of Federal power.

State Immigration Crossing Centers

States have the right and power to set up Immigration gateways anywhere they like inside their state to enforce state immigration laws, including inside the US Border Station to stop ICE buses carrying illegal immigrants and force them to alight and return to the border.

At International airports if a passenger arrives who is not welcome because his visa is invalid, expired or perhaps non-existent, the common carrier who brought the passenger to the terminal is financially responsible for returning the passenger to the point of origin.  This is why gate agents may ask a passenger to show not only their passport but also the visa for entering the country where they’re headed.

For walkers deportation involves passing them from the state transit area back to the border crossing they walked across.

State Processing of Deported Individuals

Similar to current Federal processing border-crossers one flow will spin off rejected individuals into a transit area sequestered from free exit.  It is possible while in transit for a border-crosser to communicate with the outside world and rehabilitate his situation, but more than likely those rejected will be deported.

Assured Identity through Biometric Data Storage

However, it is critical that each and every person crossing have biometric identification data gathered.  Whether the crosser is admitted or deported, that data will be stored.  If the crossing person is advised not to cross until some condition has been met and then attempts crossing again, the biometric data will provide proof of prior warning not to attempt crossing.

Biometric data can also be stored not only in the network for immigration enforcement but also on a secure card issued to visitors and immigrants.  Whether such cards are issued upon first entry to the US or prior to departure by US State Department personnel on behalf of a state granting a visa to visit or immigrate, a high-security counterfeit-resistant technology should be used.

As most 8th graders know the 10th Amendment last of the Bill of Rights reserves all powers not specifically granted to Congress and the Federal government to the States individually and if they exercise no authority the power is retained by the people.

This catch-all retention of states’ power embedded in the 10th Amendment is crucial to understanding the limitations of our Federal government.

Of all people an Attorney-General should clearly grasp the meaning of the words written into our Constitution.

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