Guest essay by Mike Maharrey
Most Americans reflexively assume the federal government has absolute control over immigration matters. But James Madison’s response to America’s first immigration crisis casts doubt on this idea.
In fact, “the Father of the Constitution,” clearly believed the states exercise the primary role in controlling who is allowed within their borders.
The Constitution does not delegate any power to the federal government to regulate immigration. Article 1 Sec. 8 gives Congress the authority “to establish an uniform Rule of Naturalization.” But naturalization only relates to granting citizenship. This doesn’t infer any power to control resident aliens within the border of a state.
The authority to deport aliens became a contentious issue in 1798 when John Adams signed the Alien Acts into law.
At the time, the U.S. was involved in an undeclared naval war with France. This so-called Quasi-War stemmed from French anger over a treaty opening up trade between the United States and Great Britain, and a U.S. refusal to pay Revolutionary War debts after the French Revolution toppled its royal government. The conflict raised the ire of many Americans, creating an anti-French backlash. The perceived need to protect America from the French threat provided just the excuse Congress needed to expand federal power.
The Naturalization Act passed on June 18, 1798, and extended the amount of time immigrants were required to live in the United States before becoming eligible for citizenship from five to 14 years. The law caused some controversy for political reasons, but didn’t raise any constitutional issues. Writing rules of naturalization clearly falls within the federal government’s enumerated powers.
The Alien Friends Act (An Act Concerning Aliens) proved more problematic. It passed Congress on June 25, 1798, and gave the president sweeping power to deport “dangerous” aliens.
It shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States, within such time as shall be expressed in such order.”
On July 6, Congress passed the An Act Respecting Alien Enemies, authorizing the arrest, imprisonment and deportation of any male who was a citizen of a nation at war with the U.S., even without any evidence he was an actual threat. There was no provision for judicial due process.
“All natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”
Democrat-Republicans, including Madison and Thomas Jefferson, primarily opposed the alien acts because they violated the Fifth Amendment by denying due-process. They also argued the acts were unconstitutional because they placed judicial powers in the hands of the executive branch. Madison specifically said the Alien Friends Act “exercises a power no where delegated to the federal government.”
In his Report of 1800, Madison expanded on his assertion that the Act Concerning Aliens violated the Tenth Amendment by asserting power over resident aliens. Madison denied the federal government had any such authority and said it was rightly the role of a state to determine who was allowed within its own borders.
Madison begins by distinguishing between alien enemies and alien friends. He admits Congress does have power over alien enemies, but denies authority extends to citizens of countries with which the U.S. is not at war.
“With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional.”
Here, Madison plainly asserts that Congress does not have the authority to deport non-citizens, nor does the president.
He hints at this again a few paragraphs later. Supporters of the Alien Act claimed that admittance into the U.S. is a “favor,” not a “right.” As such, it can be revoked at any time. Madison said even if this were the case, it would not prove the Alien Act constitutional.
“A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.”
Madison then goes on to address an argument based on the law of nations. Supporters of the Alien Act claimed aliens may be removed “at discretion, for offenses against the law of nations.” But Madison again turns to the distinction between alien enemies and alien friends.
“The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.”
Again, the federal government does not have any authority over persons welcomed within the borders of a state.
Madison goes on to expand on the distinction between alien friends and alien enemies even further by considering the various offenses an alien can commit.
“Offences for which aliens within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the constitution: and the ‘act,’ for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.”
Here we find Madison’s most emphatic statement regarding the deportation of alien friends by the federal government. He calls it “repugnant.”
While Madison’s arguments in the Report of 1800 themselves don’t prove beyond a doubt that the federal government only has limited power over immigration, they certainly strongly support this position. Madison builds his case on the most fundamental constitutional principle.
“In the first place; it is to be borne in mind, that it being a characteristic feature of the Federal constitution, as it was originally ratified, and an amendment thereto having precisely declared, “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”; it is incumbent in this, as in every other exercise of power by the federal government, to prove from the constitution, that it grants the particular power exercised.”
The original of this article appeared on the Tenth Amendment Center website, on July 23, 2017.
Michael Maharrey serves as the national communications director for the Tenth Amendment Center and the managing editor of the SchiffGold blog. He hosts his own podcast, Thoughts from Maharrey Head, as well as the Friday Gold Wrap podcast and the It’s Your Dime interview series for SchiffGold.
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