Texas governor Greg Abbott yesterday announced that the State will build its own border wall and will jail anyone “who enters our state illegally and is found trespassing, engaged in vandalism, criminal mischief, or smuggling,”
Moreover, Abbott announced plans to pursue an interstate compact with Arizona for purposes of border control.
This new move is just the latest in an ongoing contest over whether state governments have any authority over border control and control over the flow of migrants.
In recent decades, state governments have made some attempts to assert more control over how tax money is spent on immigrants. For example, 1994’s Proposition 187 in California was designed to restrict state spending on foreign nationals (i.e., “illegal immigrants”). The measure was approved by the voters but struck down by federal courts, who claimed the federal government has a monopoly on immigration enforcement.
In 2010, Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act” made further attempts to empower state officials to restrict immigration.
The federal government has generally fought hard against attempts by state government agents and officials to enforce immigration restrictions.
Indeed, Democrats and Republicans, social democrats and conservatives, can be found insisting that immigration is solely a matter for the federal government—for different reasons.
Not surprisingly, in response to the Texas announcement, the New York Times opines: “It is unclear if the state has the authority to build a wall in an attempt to deter immigrants.”
Yet, however one may feel about immigrants, both historical experience and an honest reading of article I of the US Constitution makes it clear that the federal government is not, in fact, empowered to enforce immigration.
Moreover, American policymakers at both the state and federal levels generally agreed on this during most of the nineteenth century.
It was only in the 1870s that federal officials began to claim authority to enforce immigration, and it was only in the 1880s that this became a common practice.
As I noted in a 2018 article, US states facing large migrant inflows had put into place a variety of state-based policies beginning as early as the 1830s.
In his study on state-level immigration laws, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy, Hidetaka Hirota focuses especially on state laws in Massachusetts and New York, where the matter of expelling and limiting new migrants was a matter of perennial concern:
To reduce Irish pauperism, New York and Massachusetts built upon colonial poor laws for regulating the local movement of the poor to check the landing into the state of destitute foreigners. In Massachusetts, an exceptionally strong anti-Catholic and anti-Irish tradition inspired the state legislature to go beyond merely setting entry regulations or excluding the unacceptable. Rather, Massachusetts developed laws for deporting foreign paupers already resident in the state back to Ireland or to Britain, Canada, or other American states. Between the 1830s and the early 1880s, at least 50,000 persons were removed from Massachusetts under this policy.
The federal courts also sided with the notion of state control during this period.
Early legal cases illustrated a reluctance on the part of the courts to assert federal control of migrants.
In New York v. Miln (1837) for example, the Supreme Court took up the matter of whether a state could require a docking ship to “to provide a list of passengers and to post security against the passengers from becoming public charges.” The strategy of bonding was often used, in which ship owners were forced to post a bond under which the state could be compensated in case the new migrants arriving in said ship turned out to be criminals or paupers dependent on the state.
The court sided with the state, concluding the state was entitled “to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possible convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported.”
However, regulation of immigrants was acceptable to the court so long as the regulation was “not a regulation of commerce, but of police.” That is, the court ruled to overturn the state’s ability to impose what were essentially taxes on shipping, while concluding that the state and local governments nevertheless retained to right to regulate the immigrants themselves.
Moreover, in the “Passenger Cases“ of 1849, a fractious court again declined to limit state police powers in regulating immigrants. The majority “consensus” which consisted of several different concurring opinions, struck down state efforts to collect taxes and fees designed to fund state efforts at monitoring and controlling migrants. These taxes were ruled to be against the federal powers of regulating maritime law and international shipping. The court failed to establish overall federal supremacy on the matter of immigration, however, and Justice Levi Woodbury emphasized the point in his dissenting opinion:
[I]t is for the State where the power resides to decide on what is sufficient cause for it, whether municipal or economical, sickness or crime; as, for example, danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion.
Similarly, according to Neuman, Justice “Peter Daniel invoked at length the Jeffersonian polemics against the Alien Act of 1798 to demonstrate that power over the entry of aliens was vested exclusively in the states.”1
Meanwhile, Congress largely ignored the immigration issue beyond regulating naturalization, as mandated in the Constitution.
The 1911 report from Congress’s Dillingham Commission on immigration recounts that legislation addressing immigration during the mid-nineteenth century was minimalist, to say the least. The commission notes that most agitation for new immigration legislation stemmed from the Native American Party, also known as the “Know-Nothings.” These efforts failed due to a lack of interest by federal lawmakers in regulating immigration, and also due to doubts about whether or not such efforts were even constitutional.
Meanwhile, the Committee on Foreign Affairs issued a report on congressional concerns about European nations dumping undesirables in the United States. But the committee “seemed to doubt the power of Congress to regulate the matter, so almost all their recommendations were to the States.”
Of course, in the area of immigration, as in so many other areas, the federal government began to displace and shunt aside the state governments as the nineteenth century came to a close. By the 1930s, it was clear that the federal government had every intention of asserting full control over the administration of immigration control.
This occurred in spite of the fact that immigration control is not among the enumerated powers and is thus a matter reserved to the states, as made clear in the Tenth Amendment. Nonetheless, when it is politically convenient, conservatives often wrongly insist that “naturalization” means the same thing as “immigration”—although it means no such thing. The social democrats, on the other hand, assert federal control over immigration whenever a Democrat is in office or whenever it looks like the federal courts will rule favorably toward higher levels of immigration.
Most nineteenth-century Americans would have agreed that Texas is on sound footing in claiming it is well within its rights to enforce its own immigration policies. Whether or not federal judges care about this is another matter.
“American Immigration Policy 160 Years Ago” by Ryan McMaken
1. Some originalists have claimed that the passage of the Alien and Sedition Acts proves that the federal government has constitutional authority over immigration. The Jeffersonians, of course, disagreed vehemently. The Federalists’ loss to the Republicans in 1800 essentially destroyed the profederal, anti-immigration position for decades, during which time federal immigration control was associated with the overreach of the Federalist Party, and contrary to the more strict constitutional views of the Jeffersonians.