By John Pierce
The immigration debate continues to rage, and as is normally the case, the solutions of the left andthe right both end up in the exact same place: a larger federal government.
The only way to see this situation with any clarity is from the perspective of liberty, which is the perspective of the founders—and when you do, the view changes significantly.
All across social media, not even to speak of the mainstream media, people seem to be looking at the immigration issue incorrectly. The old parties take their predictable positions. People inclined more leftward seem to want open borders with full-time Virtue Signaling Teams distributing government benefits to lure in new voters, while many on the right want to register everyone, build a wall and, if pushed, probably put sharpshooters at the top.
The constitutional perspective is completely different.
To begin with, the Constitution is essentially a libertarian document in the sense that its main concern is the liberty of the people, accomplished by restraining the size of government—the main threat to individual liberty. The federal government, the founders said, can exercise only those powers we delegate to it. The rest go to the people and the states. In fact, the main power that governments could have, the “police power” to pass laws relating to health, safety and welfare, was denied the federal government and given the states by the founders.
So, does the Constitution specifically give the power over immigration to the federal government? Before you can say of course it does, take a close look at the enumerated powers.
It does not.
The closest it comes is delegating the power to naturalize citizens. That is, the federal government can decide whether foreigners can become United States citizens. That only makes sense, But the idea that the far-off federal government would enforce borders, much less build walls on the edge of any particular state, was ridiculous in the minds of the founding generation.
History is clear enough on this point.
The Alien and Sedition Acts of 1798 effectively nationalized the issue of immigration by giving government the power to deport non-citizens in a time of near war with France. But Thomas Jefferson and James Madison condemned the measure as unconstitutional. Jefferson persuasively argues that these issues were mainly left to the states, and that federal intervention in immigration was an unconstitutional overreach.
In 1868 the Fourteen Amendment was passed stating that, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Some have claimed that this gave the federal government increased power over immigration, but the language and history belie the claim. There is no reference to immigration, only naturalization and citizenship in the United States, both explicitly federal issues. Such a bold change in the law would have created a passionate reaction – similar to opposition to the Alien and Sedition Acts. We find no such reaction in the discourse of the time.
Some 20 years later, though, things got complicated.
The Supreme Court essentially federalized the immigration power in 1889. It did so at that time to ban Chinese laborers from coming into the United States. The Court agreed with a California proposal and a law the Congress had passed the year before. The reasoning behind the law were shocking to the modern ear, “the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion.” See the Chinese Exclusion Case, here.
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Did the Supreme Court of 1889 have the authority to hand over a state power to the federal government when the Constitution did not? Of course not.
Can the 130 years of law since then be reversed because of this inappropriate appropriation of power?
Practically speaking, probably not. Nevertheless, the change in law has fueled the inexorable growth of government, and we should recognize this before we clamor for more federal action.
Where the “threat” in 1889 was supposedly the Chinese, today it is Mexicans, Middle Easterners, or more often, simply a general threat to our safety. Whomever “they” are, it is argued, “they” will come across the border and menace us. Therefore, the United States should spend millions, if not billions, of dollars on a towering wall, double the size of certain federal law enforcement agencies and register huge numbers of people in federal databases.
If the real reason for this expansion of government were terrorism, the United States would include Saudi Arabia in all of its actions to thwart the threat. In fact most of the 9/11 bombers were from Saudi Arabia. But it does not. If the reason to expand government is to slow the “towering wave” of immigration crashing across the southern border, then there is actually no reason at all. Immigration from Mexico slows and even reverses in some years. See here, here, and here. Indeed, in some recent years, more Mexicans have returned south than come north.
In fact, the real reason for all of this federal action can only be to scare the people and increase the size and scope its power. And wherever government grows, a share of liberty is lost.
None of this is to say that the borders should be wide open. The idea that a state must throw its borders open is to declare an invincible ignorance of history and the threats in the world. Nor is any of this to say that we should coddle foreign felons within our borders because we are so superbly virtuous. Those who cause violence or harm to others should be given no quarter—they should be deported or vigorously prosecuted. That said, crimes without a victim, such as possession of marijuana, should not be crimes at all, which would in itself reduce much of the danger associated with the border.
The idea that a great deal of the immigration rhetoric is a scare tactic meant to empower government and that there is a real danger from particular individuals from foreign lands are not mutually exclusive. They can both be true. It is, instead, to say that we must must be most vigilant with the greater threats to our freedoms. We must look at the solutions proposed to every problem and ask first if they reduce liberty or expand government.
And then there is the matter of entitlements—the actual fuel that keeps this fire burning. The vast array of unconstitutional government benefit programs which have pushed aside the role of private charity in this nation are a significant part of the reason it is all but bankrupt. People, corporations, causes have figured out that they can vote themselves money, and it may well be our downfall if not addressed. The unfairness of giving these benefits to people who have come across the border improperly cannot be denied.
Obviously, it’s not the fault of undocumented immigrants that the people of the United States keep electing leaders who can’t control themselves. The last election cycle went by with only the shallowest of lip service paid to the national debt, but a vast array of new spending was promised by both sides, and there was little or no outcry from the population.
Instead of a wall, if that energy were used to (1) cut all of the varied entitlements to undocumented immigrants, (2) punish those of whatever nationality in the United States who help them secure fraudulent identification or who knowingly or negligently accept these papers and (3) revitalize vigorous private charity in this area and commend the religious institutions that do so, the problem would be far more likely to be solved, and the size of government would decrease instead of increase.
And make no mistake – the increasing size of the government is the real danger to true freedom and long-term security in the United States: Answers that grow government are no answers at all.
This article was originally published by the Tenth Amendment Center.
John “JD” Pierce is a property and constitutional law attorney in the State of Florida, an adjunct law professor at a law school in Tampa Bay, a registered Libertarian and a columnist for the Tenth Amendment Center.