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The Historical Amnesia of Contemporary Immigration Federalism Debates

  • Symposium Article
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Polity

Abstract

This article explores competing interpretations of American federalism and immigration authority during the 18th century. I argue that the 1787 Constitution did not clearly place the authority to manage migration with the national government. In fact, the Constitution did not discuss entry and exit policy, including the power of deportation. The debates over the Alien and Sedition Acts illustrate the diversity of opinions about the proper balance of authority between the national and subnational governments with regard to migration policy. Debates over the potential expansion of national power were particularly heated in the antebellum period because migration policy and slave policy were inextricably linked. In the end, whatever guidance the Constitution provided on migration policy was tainted by the document’s endorsement of slavery.

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Notes

  1. AZ v U.S. oral argument transcript No. 11–182, remarks of Solicitor General Donald Verrilli, Jr., 35, Available at, http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-182.pdf, accessed on October 21, 2014.

  2. AZ v U.S. oral argument transcript No. 11–182, remarks of Solicitor General Donald Verrilli, Jr., 35, 48, 63, 64 (lines 9 and 23), 69, 71 and 74.

  3. AZ v U.S. oral argument transcript No. 11–182, remarks of Solicitor General Donald Verrilli, Jr., 35.

  4. Anna O. Law, The Immigration Battle in American Courts, Paperback (New York: Cambridge University Press, 2014), 30–32, 50.

  5. Gerald L. Neuman, “The Lost Century of U.S. Immigration Law (1776–1875),” Columbia Law Review 93 (December 1993): 1839, citing Kleindeist v Mandel, 408 U.S 753 (1972).

  6. Ibid., 1839–40.

  7. See http://www.ncsl.org/research/education/undocumented-student-tuition-state-action.aspx and http://cmsny.org/municipal-ids-and-state-and-local-measures-to-regularize-the-lives-of-the-unauthorized/, respectively, accessed on April 7, 2015.

  8. A Lexis/Nexis search of law reviews from 2000 to 9/30/14 for articles with “immigration federalism” returned 361 results. A similar search in only social-science journals only produced a few dozen results.

  9. Obviously the legal academy is not monolithic, and many law professors have also expressed skepticism of the central government’s claim of exclusivity over immigration. See, for example: Cristina Rodriguez, “The Significance of the Local in Immigration Regulation,” Michigan Law Review 106 (2008), 567; and Peter J. Spiro, “The States and Immigration in an Era of Demi-Sovereigns,” Virginia Journal of International Law 35 (1995), 121. Both scholars are critical of the federal government’s claim of exclusive power based on its sole sovereign status. See also Clare Huntington, “The Constitutional Dimension of Immigration Federalism,” Vanderbilt Law Review 61 (2008), 787, who challenges the allegedly clean and clear constitutional mandates for exclusive federal control. Peter H. Schuck, “Taking Immigration Federalism Seriously” Faculty Scholarship Series, (2007), Paper 1675; and Hiroshi Motomura, Immigration Outside the Law (New York: Oxford University Press, 2014), ch. 4, are among those who disagree with the notion that state immigration policies are incompatible with enhancing pro-immigrant rights and individual rights.

  10. Thomas Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, and Maryellen Fullerton, Immigration and Citizenship Process and Policy, Seventh Edn., American Casebook Series (St. Paul, MN: West, 2012), 162–201; Stephen Legomsky and Cristina Rodriguez, Immigration and Refugee Law and Policy, Fifth Edn., University Casebook Series (Foundation Press, 2009), 113–30.

  11. Legomsky and Rodriguez cite U.S. v Curtiss-Wright Export Corp (1936) for the notion that the national government, specifically the President, should have latitude to carry out foreign affairs. Aleinikoff and his co-authors suggest two other sources supporting federal immigration power: (1) Judge Learned Hand’s “The Rule of Necessity” that the Constitution should not be interpreted to “defeat the venture at hand” and (2) structural readings of the Constitution involving Michael Walzer’s idea of “self-definition” and the separate idea of “self-preservation.” Aleinikoff et al., Immigration and Citizenship Process and Policy, 192–93.

  12. Aleinikoff et al., Immigration and Citizenship Process and Policy, 162–201.

  13. Legomsky and Rodriguez, Immigration and Refugee Law and Policy, 131.

  14. Neuman, “The Lost Century of U.S. Immigration Law (1776–1875),” 1839.

  15. Neuman, “The Lost Century of U.S. Immigration Law (1776–1875)”; Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State,” Studies in American Political Development 28 (October 2014): 107–28.

  16. Legomsky and Rodriguez, Immigration and Refugee Law and Policy, 118; Aleinikoff, et al., Immigration and Citizenship Process and Policy, 190. Both books also cite the Passenger Cases and Walter Berns, “The Constitution and the Migration of Slaves,” 78 Yale L. J. 198 (1968).

  17. Castro-O’Ryan v. INS, 821 F.2d 1415, 1419 (9th Cir. 1987).

  18. Neuman, “The Lost Century of U.S. Immigration Law (1776–1875),” 1835.

  19. Ibid., 1836.

  20. George Anderson, Federalism: An Introduction (Oxford: Oxford University Press, 2008), 3.

  21. Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic, Part I: “The Federalization of Naturalization” (University Park: University of Pennsylvania Press, 2013).

  22. The standard citation is Walter Berns, “The Constitution and the Migration of Slaves,” in The Yale Law Journal 78:2 (December 1968): 198–228.

  23. Christian G. Fritz, American Sovereigns—The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2009), 192.

  24. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts (Little, Brown, and Company, 1951), 162.

  25. Joseph J. Ellis, American Creation (New York: Vintage Books, 2008), 102.

  26. Donald L. Robinson, Slavery in the Structure of American Politics, 1760–1820 (NewYork: Harcourt, Brace, Janovich, 1971), 210.

  27. Edward Hutchinson, Legislative History of American Immigration Policy (University Park: University of Philadelphia Press, 1981), 13–15; and John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 75.

  28. James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell University Press, 1956), 94–95.

  29. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, 435–42.

  30. Stanley Elkins and Erick McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), 592.

  31. Ibid., 591.

  32. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 50.

  33. James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, 53.

  34. Ibid., 61.

  35. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 51.

  36. Ibid., 46, 50; James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, 23, 25.

  37. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 163.

  38. Annals of Congress, vol. 5th Cong., 2nd sess., 1798, 1990.

  39. Ibid., 5th Cong., 2nd sess.: 1974.

  40. Ibid.

  41. Ibid., 5th Cong., 2nd sess.:1974–1978.

  42. Ibid., 5th Cong., 2nd sess.:1978.

  43. Ibid., 5th Cong., 2nd sess.:1979, italics in original.

  44. Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State.”

  45. Annals of Congress, vol. 5th Cong., 2nd sess., 1798, 1978–1979.

  46. Annals of Congress, 5th Cong., 2nd sess.:1983.

  47. Ibid., 5th Cong., 2nd sess.:1991.

  48. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 164.

  49. Walter Berns, “The Constitution and the Migration of Slaves,” The Yale Law Journal, 78(2) (December 1968): 198–228, at 211.

  50. Annals of Congress, 5th Cong., 2nd sess.:589.

  51. John C. Miller, Crisis in Freedom—The Alien and Sedition Acts, 53.

  52. James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, 93, 159, 175.

  53. Stanley Elkins and Erick McKitrick, The Age of Federalism, 695.

  54. Christian G. Fritz, American Sovereigns—The People and America’s Constitutional Tradition Before the Civil War, 210.

  55. Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State.”

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Authors and Affiliations

  1. CUNY Brooklyn College,

    Anna O Law

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The author wishes to thank Cybelle Fox, Rebecca Hamlin, Rogers Smith, Dan Tichenor, the anonymous reviewers for Polity for their comments on previous drafts, and Michael Perrin for copyediting. She is also grateful to Brooklyn College librarian Jane Cramer for helping her track down historical materials.

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Law, A. The Historical Amnesia of Contemporary Immigration Federalism Debates. Polity 47, 302–319 (2015). https://doi.org/10.1057/pol.2015.13

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