[A podcast of our interview with the author on this topic can be found here.]
I, an advocate of liberty and staunch defender of the Constitution, support amnesty for illegal immigrants.
What I just said is tantamount to political blasphemy, if not treason, in the eyes of conservatives. Right now, some readers are quite perplexed, trying to reconcile their understanding of my general political ideals with this latest revelation. How can one who positions himself as an advocate of the Constitution, the rule of law, sovereignty, etc., support amnesty in any way, shape, or form?
The answer to that question will manifest itself as we walk through several important facets of the issue to better grasp why I could possibly be for amnesty—and why you should support it as well. To start, and before diving into specifics, I’d like to propose a high-level ideal which our immigration policy should work towards if we’re to maximize individual liberty and prosperity.
In the Book of Mormon, a sibling rivalry in a family of migrant settlers turns into centuries of divisive conflict between the two civilizations that form, each adhering to a different legal code and theology. Towards the latter end of the historical narrative, we find a description of what occurred between these two groups once the conflict (finally!) subsided:
And behold, there was peace in all the land, insomuch that the Nephites did go into whatsoever part of the land they would, whether among the Nephites or the Lamanites.
And it came to pass that the Lamanites did also go whithersoever they would, whether it were among the Lamanites or among the Nephites; and thus they did have free intercourse one with another, to buy and to sell, and to get gain, according to their desire.
And it came to pass that they became exceedingly rich, both the Lamanites and the Nephites; and they did have an exceeding plenty of gold, and of silver, and of all manner of precious metals, both in the land south and in the land north. (Helaman 6:7-9, emphasis added)
Here we find one of the (extremely) few times peace existed between these two groups, and the narrator lists for us a few resulting and related benefits. The first product of peace mentioned is open migration between the inhabitants of each distinct civilization. Free intercourse and commerce have special mention, and are corollaries to the unrestricted ability to travel and reside where one pleases. Second, the record notes that this exchange between the individuals of each group yielded increased prosperity for all involved. They became “exceedingly rich” and had “an exceeding plenty”.
As with other scripture, this one can and should be likened unto us. This is not to say, of course, that American government and jurisprudence should conform to the models found in scriptural history; the Book of Mormon describes various forms of government and is mostly theocratic in nature. However, the principle contained in this ideal snapshot of liberty and prosperity should be sincerely scrutinized in order to find out how we can apply it to ourselves and produce similar results.
A (not very) brief history of immigration
Before proceeding with some of the detailed arguments, it’s important to first understand the history of immigration law in the Unites States of America. At the very outset of the country’s formation, we find the subject raised in the list of grievances presented in the Declaration of Independence. The relevant complaint against King George notes that “He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” For years prior to the revolution, colonies had been developing systems whereby local naturalization would be conferred (in other words, citizenship granted) to a resident, based on factors such as length of residency and good character. These local citizenship laws were not recognized by the Crown, as England had its own process and saw an alien naturalized by Massachusetts law as an alien still—one who was not a subject of the Crown until parliamentary naturalization was conferred.
The Articles of Confederation allowed each state to retain its authority over naturalization, resulting in a variety of state practices—an outcome which James Madison called a “fault” and “defect” of the Confederation. Pennsylvania, for example, listed the following naturalization process in their September 28, 1776 constitution in section 42:
Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year’s residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.
Joseph Story, in his Commentaries on the Constitution, describes the fix that the Constitutional Convention later produced:
The propriety of confiding the power to establish an uniform rule of naturalization to the national government seems not to have occasioned any doubt or controversy in the convention. For aught that appears on the journals, it was conceded without objection. Under the confederation, the states possessed the sole authority to exercise the power; and the dissimilarity of the system in different states was generally admitted, as a prominent defect, and laid the foundation of many delicate and intricate questions. As the free inhabitants of each state were entitled to all the privileges and immunities of citizens in all the other states, it followed, that a single state possessed the power of forcing into every other state, with the enjoyment of every immunity and privilege, any alien, whom it might choose to incorporate into its own society, however repugnant such admission might be to their polity, conveniences, and even prejudices. In effect every state possessed the power of naturalizing aliens in every other state; a power as mischievous in its nature, as it was indiscreet in its actual exercise. In one state, residence for a short time might, and did confer the rights of citizenship. In others, qualifications of greater importance were required. An alien, therefore, incapacitated for the possession of certain rights by the laws of the latter, might, by a previous residence and naturalization in the former, elude at pleasure all their salutary regulations for self-protection. Thus the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction.
Extending an invitation to foreigners, Madison once noted that “America was indebted to emigration for [America's] settlement & prosperity” (notice here another connection between free migration and prosperity). The century that followed was a recognition of this debt and a continuation of the attitude that produced it; America was an “open borders” nation welcoming those who wished to enter. Federal laws dealt only with naturalization (such as the Naturalization Acts of 1790, 1795, and 1798), leaving to each of the several states the authority and ability to regulate immigration. Naturally, coastal states disproportionately dealt with the issue due to the shiploads of migrants disembarking at their ports. These states often took several steps in regards to the influx of immigrants, such as charging a modest fee to each shipmaster in order to raise funds for charities and hospitals that offered assistance to impoverished immigrants, deporting aliens deemed to “become wards of the state,” and establishing volunteer immigration boards.
State-based immigration was not always smooth sailing, though. In 1837, right in the middle of the century-long “open door era”, state laws that screened immigrants (primarily for health reasons) were challenged in the U.S. Supreme Court because, it was alleged, such laws interfered with interstate and foreign commerce—both of which constitutionally fall under the purview of the federal government. The case, Mayor of the City of New York v. Miln, arose when Miln, master of the ship “Emily” refused to comply with New York law requiring him to provide a list of his passengers and to post a bond for each in order to assure such individuals did not become wards of the state. Miln’s refusal prompted New York’s lawsuit in seeking a penalty for failure to comply.
The Court’s decision deserves to be quoted at length, in order to understand the context of their decision and the strength of the state’s position in regulating immigration:
It is contended by the counsel for the defendant that the act in question is a regulation of commerce; that the power to regulate commerce is, by the Constitution of the United States, granted to Congress; that this power is exclusive, and that consequently the act is a violation of the Constitution of the United States.
We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the states, because the opinion which we have formed renders it unnecessary. In other words, we are of opinion that the act is not a regulation of commerce, but of police [in other words, a sovereign state's general “police power”], and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the states.
That the State of New York possessed power to pass this law before the adoption of the Constitution of the United States might probably be taken as a truism, without the necessity of proof. But as it may tend to present it in a clearer point of view, we will quote a few passages from a standard writer upon public law showing the origin and character of this power[:]
“The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. … Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases, to the permission to enter.”
The power, then, of New York to pass this law having undeniably existed at the formation of the Constitution, the simple inquiry is whether by that instrument is was taken from the states and granted to Congress, for if it were not, it yet remains with them.
If, as we think, it be a regulation not of commerce, but police, then it is not taken from the states.
… We think it as competent for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound or infectious articles imported.
… [G]oods are the subject of commerce, … persons are not; the Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed and were yet in bulk, but why? Because they were the subjects of commerce and because, as the power to regulate commerce under which the importation was made implied a right to sell; that right was complete without paying the state for a second right to sell whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition to the states from imposing a duty on imported goods. (emphasis added)
We note here that the law in question dealt not with the restriction of what individual or group of persons was allowed to enter New York, but with modest procedures that sought to protect the public from disease and dependency. The Court upheld the state’s sovereign right to regulate immigration into its borders in this fashion; immigration remained free to all.
Along the way, the federal government slowly began to take interest in the matter. The first toe in the water was the Steerage Act passed by Congress on March 2, 1819 requiring the captain of a ship arriving at a United States port from a foreign country to surrender a list of passengers to the collector of customs, effective January 1, 1820. Four decades later, Congress established the Bureau of Immigration for the sole purpose of recording relevant statistics of emigrants. Four years later this was reversed, and the job handed over to the Bureau of Statistics. These efforts, though, were strictly observatory—no actions were taken to regulate, restrict, or prevent the immigration from occurring.
In 1864, the same year that the Bureau of Immigration was created, the decade-old Republican Party included in its platform the following statement on immigration:
Foreign immigration which in the past has added so much to the wealth, resources, and increase of power to this nation … the asylum of the oppressed of all nations … should be fostered and encouraged by a liberal and just policy.
The year prior, President Lincoln himself had encouraged Congress to “establish a system for the encouragement of immigration,” noting that the migrant influx was a “source of national wealth and strength.” Thus, although the federal government was increasingly (but slowly) becoming involved in the issue of immigration, it was doing so with the object and design of increasing the flow of immigrants and welcoming them to our nation.
Just a few short years later, the first of what would become an alarmingly increasing number of federal interventions into the immigration process manifested itself in a U.S Supreme Court case named Henderson v. Mayor of the City of New York. Here the Court reversed their 1824 decision and declared that since shipmasters paid a fee per immigrant, this equated to a tax on foreign imports, and thus constituted foreign commerce—an action which constitutionally falls under the purview of the federal government. The relevant portion of their decision reads:
It is said that the purpose of the act is to protect the State against the consequences of the flood of pauperism immigrating from Europe, and first landing in that city. But it is a strange mode of doing this to tax every passenger alike who comes from abroad.
The man who brings with him important additions to the wealth of the country, and the man who is perfectly free from disease, and brings to aid the industry of the country a stout heart and a strong arm, are as much the subject of the tax as the diseased pauper who may become the object of the charity of the city the day after he lands from the vessel.
No just rule can make the citizen of France landing from an English vessel on our shore liable for the support of an English or Irish pauper who lands at the same time from the same vessel. …
As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power ‘to regulate commerce with foreign nations.’ As was said in United States v. Holliday, ‘commerce with foreign nations means commerce between citizens of the United States and citizens or subjects of foreign governments.’ It means trade, and it means intercourse. It means commercial intercourse between nations, and parts of nations, in all its branches. … To regulate this trade and intercourse is to prescribe the rules by which it shall be conducted. ‘The mind,’ says the great Chief Justice, ‘can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of another;’ and he might have added, with equal force, which prescribed no terms for the admission of their cargo or their passengers.
Since the delivery of the opinion in that case, which has become the accepted canon of construction of this clause of the Constitution, as far as it extends, the transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations, of vast interest to this country, as well as to the immigrants who come among us to find a welcome and a home within our borders. In addition to the wealth which some of them bring, they bring still more largely the labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture. Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?
The transportation of a passenger from Liverpool to the city of New York is one voyage. It is not completed until the passenger is disembarked at the pier in the latter city. A law or a rule emanating from any lawful authority, which prescribes terms or conditions on which alone the vessel can discharge its passengers, is a regulation of commerce; and, in case of vessels and passengers coming from foreign ports, in a regulation of commerce with foreign nations.
The accuracy of these definitions is scarcely denied by the advocates of the State statutes. But assuming, that, in the formation of our government, certain powers necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citizens, and their protection against pauperism and against contagious and infectious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this class, and belongs rightfully to the States.
This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution. …
But, however difficult this may be, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States.
It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. It is apparent, therefore, that, if there be a class of laws which may be valid when passed by the States until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class. (emphasis added)
Here’s the kicker, towards the end of the opinion:
We are of the opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.
What’s interesting about the Court’s opinion in this case is its striking resemblance to Wickard v. Filburn, a case which decades later found the Court arguing that the commerce clause of the U.S. Constitution had application to essentially any economic activity anywhere, because any single economic activity had the potential to, in the aggregate, affect economic activity in other states. The Court here makes a similar argument, namely, that wealthy individuals disembarking at a state port intended to participate in economic exchanges with others, and that the transportation of individuals on board a naval vessel was indirectly related to commerce due to ship fares and bonds. Though the federal government at this time still had no laws on the books regarding immigration, the Court opined that the immigration laws among the several states should be uniform—even though to a large extent they already were, without any federal regulation.
Important though this case was, it did not actually remove from the states the sovereign right to regulate immigration. Rather, it declared that any taxation of said immigrants constituted a form of foreign commerce, and was thus denied to the states under the U.S. Constitution.
While most issues dealing with immigration had until now focused on the eastern seaboard, our gaze now turns westward, where California passed several laws targeting Chinese immigrants specifically. A few decades prior, the gold rush seduced people of all nationalities, and Chinese immigrants came in droves to try their hand at striking rich. As things regained normalcy, many of the Chinese workforce became employed on the Transcontinental Railroad project, competing with the white workers for day laborer jobs. Naturally, this didn’t sit well with those who felt entitled to “American jobs”.
In rapid fashion, the Chinese as a bloc became perceived as being an economic threat. San Francisco, which by this time had become a multicultural melting pot of its own, was home to a protest in 1870 by Irish factory workers demanding a pay increase from three dollars per day to four. These workers were replaced by Chinese who worked for one dollar per day. Popular culture soon embraced a widespread denigration of these Chinese immigrants, painting them as strange rat-eaters and job-stealers.
Municipal and state laws passed in response to this influx of cheap labor specifically targeted the Chinese population. Some were focused on industries dominated almost entirely by the Chinese, such as laundries, with San Francisco passing an ordinance ordering people not to walk on any sidewalk with a pole and baskets over his shoulder.
Pressure mounted by the western states to see restrictions on immigration instituted by the federal government. Responding accordingly, President Rutherford B. Hayes in 1880 successfully amended the Burlingame Treaty, signed 22 years previously in a pact with China to recognize the right of migration. Previous to its amendment, and for over two decades, the treaty declared:
The United States of America and the emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, of trade, or as permanent residents.
Similar language was found in other treaties, such as in the Treaty of Commerce and Navigation between the United States and Japan signed in 1911:
The citizens or subjects of each of the high contrating parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generall to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.
The amendment to the Burlingame Treaty suspended Chinese immigration while affirming protection for the “grandfathered” immigrants who had already arrived. Both parties in Congress, each vying to attract the vote of the western states, supported federal legislation taking the issue a step further. A bill passed the following year which would have stopped Chinese immigration entirely for nearly two decades. The bill was vetoed by President Chester Arthur, for fear of an economic retaliation by the Chinese government. The western states were furious, and some went so far as to burn the President in effigy as a result. One year later, on May 6, 1882, a softer version of the same bill passed and was signed into law by the President. This bill banned Chinese immigration for ten years, and allowed merchants, teachers, and students to immigrate freely. This new law—the first federal legislation restricting immigration— was named the Chinese Exclusion Act of 1882. For the first time with the treaty amendment and the subsequent legislation, not only was the federal government regulating/restricting immigration, but it was doing so on the basis of nationality or race.
Thus was “illegal immigration” born.
For the first time in America, there were two classes of immigrants: legal and illegal. The ban on Chinese immigration was permanently renewed, and was not to be repealed until 1943 when 105 Chinese immigrants per year were allowed. The Geary Act of 1892 was the first extension of the original immigration suspension, and was, unsurprisingly, written by a California congressman. In addition to renewing the previous Act, this new law required all Chinese residents to register for certificates documenting their lawful residence, and refused them the ability to bear witness in court cases or be given bail in habeas corpus cases. Three years later, the Supreme Court declared that federal district courts could not even review Chinese habeas corpus petitions.
What for decades was a trickle of increasing federal oversight of and interest in immigration soon became a deluge. Three years after the Chinese Exclusion Act, Congress passed the union-promoted Contract Labor Law, which prohibited the use of contract labor with exemptions for actors, artists, lecturers, singers, domestic servants, and skilled labor required for new industries. Three years later, an amendment to the Contract Labor Law was passed ordering the deportation of alien contract laborers within one year of entry.
The expansion of federal intervention into immigration was coordinated through the efforts of each branch of government. The Supreme Court, not to be outdone, further augmented the immigration authority in an 1889 case dealing with a Chinese immigrant who went on a vacation to his homeland for a short time. Having obtained a certificate assuring his re-entry upon returning, he left America. When he arrived at the conclusion of his voyage, he was informed that new legislation had rendered his certificate and the government’s previous promise to him null and void. The 1889 Court decision concluded that Congress could indeed refuse him entry into the United States despite any previous assurances made. Part of the decision reads:
The power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty which cannot be surrendered by the treaty making power. …
That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.
If it could not exclude aliens, it would be to that extent subject to the control of another power. As said by this Court in the case of 11 U. S. 136, speaking by Chief Justice Marshall:
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”
While under our constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations. …
The control of local matters being left to local authorities, and national matters being intrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. …
If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases its determination is conclusive upon the judiciary. …
The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments. In a communication made in December, 1852, to Mr. A. Dudley Mann, at one time a special agent of the department of state in Europe, Mr. Everett, then secretary of state under President Fillmore, writes: ‘This government could never give up the right of excluding foreigners whose presence it might deem a source of danger to the United States.’ …
In a dispatch to Mr. Fay, our minister to Switzerland, in March, 1856, Mr. Marcy, secretary of state under President Pierce, writes: ‘Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war.’ ‘It may always be questionable whether a resort to this power is warranted by the circumstances, or what department of the government is empowered to exert it; but there can be no doubt that it is possessed by all nations, and that each may decide for itself when the occasion arises demanding its exercise.’
In a communication in September, 1869, to Mr. Washburne, our minister to France, Mr. Fish, secretary of state under President Grant, uses this language: ‘The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the state, are too clearly within the essential attributes of sovereignty to be seriously contested. Strangers visiting or sojourning in a foreign country voluntarily submit themselves to its laws and customs, and the municipal laws of France, authorizing the expulsion of strangers, are not of such recent date, nor has the exercise of the power by the government of France been so infrequent, that sojourners within her territory can claim surprise when the power is put in force.’ …
The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract.
Whatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure. (emphasis added)
The Court here inferred some congressional authority to divine the “national interest” and use such as justification for forbidding any person entry into the United States when “the interests of the country require it”. On any whim, then, Congress could refuse to admit anybody into the country, based on nationality or any other qualifier. The textual basis for their defense in this case was not the commerce clause, but the power to repel invasions. As support for such a statement, the Court argued that invasions can come through an organized national military force or “vast hordes” of individuals peacefully migrating of their own accord.
In a case three years later, the Court again affirmed the sovereign right of the federal government to restrict and regulation of individuals:
It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government, and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress. (emphasis added)
A year later, the Court again augmented the sovereignty ruling, declaring:
The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.
In the United States, the power to exclude or to expel aliens is vested in the political departments of the National Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department is authorized by treaty or by statute, or is required by the Constitution, to intervene.
The power of Congress to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien’s right to remain in the country has been made by Congress to depend.
Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system. (emphasis added)
In the matter of a couple decades, the Court’s opinions had transmogrified into something altogether different than the established precedent. Whereas 1875′s ruling found the Court issuing their decree in light of the commerce clause and power of states to tax freely migrating individuals, the Court, after the hyped anti-Chinese public sentiment had permeated America’s political institutions, instead affirmed a “sovereign right” in agreement with “international law” to “provide a system of registration” for immigrants, and restrict and expel whomever they wished, for whatever reason; only a casual and weak reference was made to the power to repel invasions.
The Court’s opinions, of course, were not unanimous decrees reflecting universal agreement in political ideology and governmental authority. In a dissent of the 1893 decision, Justice Brewer took issue with his colleagues’ inference of the “sovereign power” being used to justify regulation of immigration:
It has been repeated so often as to become axiomatic that this government is one of enumerated and delegated powers; and, as declared in article 10 or the amendments, ‘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 said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, and it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory. …
The government of the United States is one of limited and delegated powers. It takes nothing from the usages or the former action of European governments, nor does it take any power by any supposed inherent sovereignty. There is a great deal of confusion in the use of the word ‘sovereignty’ by law writers. Sovereignty or supreme power is in this country vested in the people, and only in the people. By them certain sovereign powers have been delegated to the government of the United States, and other sovereign powers reserved to the states or to themselves. This is not a matter of inference and argument, but is the express declaration of the tenth amendment to the constitution, passed to avoid any misinterpretation of the powers of the general government. That amendment declares that ‘that 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.’ When, therefore, power is exercised by congress, authority for it must be found in express terms in the constitution, or in the means necessary or proper for the execution of the power expressed. If it cannot be thus found, it does not exist. (emphasis added)
Brewer’s defense provides clarity of thought where previous and future Court opinions were found lacking—arguing that detaining and deporting individuals suspected of being in violation of immigration law, without affording due process, is a practice authorized nowhere in the Constitution. But the Court’s majority continually ruled in favor of an expansion of government authority, interestingly not relying in these instances upon the naturalization clause, but upon the commerce clause, the delegated power to repel invasions, and the “sovereign” right America supposedly has as a nation.
The previous Court decision to ban taxes on immigrants took away from the states the ability to fund the care of the poor and needy. The festering problem these individuals continually introduced led people to look instead to the federal government, where popular support resulted in a comprehensive 1891 immigration law which established Ellis Island, put administration of immigration law under the Treasury Department in a new Bureau of Immigration, and listed a number of “inadmissible classes” of individuals who would not be permitted to enter the country. Included in that list of mostly acceptable exclusions (diseased people, felons, etc.) were polygamists, their inclusion in the list resulting from the political battle being fought with Utah over its desired entry into the Union, and the repeated and bigoted persecution heaped upon members of the Church of Jesus Christ of Latter-day Saints. Thus within a matter of years, immigration law was being used to target both ethnic and religious communities specifically.
A decade later, the Chinese Exclusion act was renewed indefinitely. A few years after that, Congress wanted a comprehensive look into the “immigration question” and established a nine-member commission, known as the Dillingham Commission, that investigated from 1907 to 1911 the various issues at hand and reported their findings in 41 volumes. Their ultimate recommendation: curtail immigration from Japan and southern and eastern Europe. Their reasoning: such individuals were, based on “scientific” data, fundamentally incapable of assimilation into American culture—new immigrants were inferior to older ones, produced a saturation of unskilled labor which resulted in lower wages and standard of living, took jobs from native workers, and lived in unsanitary conditions. Their proposed remedy: administer literacy tests to ensure that immigrants could read and write.
Xenophobia continued to increase, leading to the Immigration Act of 1917 which ignored any limitations whatsoever on constitutional restraint, and assumed complete and unlimited control over the regulation and restriction of immigration. Woodrow Wilson vetoed the bill but Congress had the support to override the veto, and after four attempts were able to include the recommendations of the Dillingham Commission to require a literacy examination and block immigrants from the aforementioned geographic locations and ethnic backgrounds. All Asians, save for Japanese and Filipinos, were barred from migrating to the United States of America. The tight and extensive regulations imposed by this bill were further strengthened and augmented in a related bill passed seven years later which likewise extended the Chinese Exclusion Act, imposed immigration caps on various countries, and outright prohibited the immigration of certain races of people. No limitations were imposed on people from Latin American countries.
The sentiment permeating this legislation was vocalized by Rep. Albert Johnson, Chairman of the Committee on Immigration and Naturalization, who wrote the following in a foreword to the 1927 book Immigration Restriction: A Study of the Opposition to and Regulation of Immigration into the United States:
The result [of free migration] is too well known to require extensive comment. Millions came. Today, instead of a well-knit homogenous citizenry, we have a body politic made up of all and every diverse element. Today, instead of a nation descended from generations of freemen bred to a knowledge of the principles and practices of self-government, of liberty under law, we have a heterogeneous population no small proportion of which is sprung from races that, throughout the centuries, have known no liberty at all, and no law save the decrees of overlords and princes. In other words, our capacity to maintain our cherished institutions stands diluted by a stream of alien blood, with all its inherited misconceptions respecting the relationships of the governing power to the governed.
It is out of an appreciation of this fundamental fact, vague at first, but later grown firm and substantial, that the American people have come to sanction–indeed to demand–reform of our immigration laws. They have seen, patent and plain, the encroachments of the foreign-born flood upon their own lives. They have come to realize that such a flood, affecting as it does every individual of whatever race or origin, can not fail likewise to affect the institutions which have made and preserved American liberties. It is no wonder, therefore, that the myth of the melting pot has been discredited. It is no wonder that Americans everywhere are insisting that their land no longer shall offer free and unrestricted asylum to the rest of the world.
The United States is our land. If it was not the land of our fathers, at least it may be, and it should be, the land of our children. We intend to maintain it so. The day of unalloyed welcome to all peoples, the day of indiscriminate acceptance of all races, has definitely ended.
In addition, crusaders of the 1917 and 1924 laws were deeply persuaded by Madison Grant and his 1916 book The Passing of the Great Race. Grant was a eugenicist who favored selective breeding as a method of purifying the American population’s bloodstream. He was a source for much of the data relied upon for constructing the 1924 law, his advocacy focused on an immigration limit for individuals from eastern/southern Europe and an outright ban on East Asians. The added laws in the 1924 now required that aliens obtain visas from an American consul in their country of origin, this serving as a method of screening applicants in order to select those who were deemed best suited for migration to, and perhaps eventual citizenship in, the United States.
The Alien Registration Act of 1940 required all aliens within the country’s borders to register and receive an Alien Registration Receipt Card, a piece of documentation that a decade later would morph into today’s green card. Included in this law was a provision forbidding aliens to “advocate, abet, or teach the desirability of overthrowing government”—a restriction used largely to prosecute Communists.
The dozens of related bills passed in subsequent decades, leading up until today, vary little from the general trend here described. The race-based immigration quotas were finally removed after over 70 years of their use, leaving us with what we have today: a simple ratio-based ceiling, justified in various court cases by different cited authorities: the commerce clause, the power to repel invasions, the naturalization clause, or circumventing the Constitution altogether, the implied rights enjoyed by a sovereign nation.
A summary interpretation of U.S. immigration history
While the foregoing history contained bits and pieces of editorialization, it is important to expand upon several points already made.
Our current immigration situation can be likened to a rotting tree, either in need of being felled or nurtured to good health. If we were to dig up the roots, though, we would see that they are poisoned; the foundation upon which our modern immigration laws rest is evil and wrong. This poison consists of two parts: racism and protectionism.
As has been shown, federal immigration laws got their start as a method by which xenophobic Americans rallied together to summarily deny specific ethnic groups from coming to this land. Whereas in previous decades, the federal government explicitly recognized the “inherent and inalienable right of man to change his home and allegiance” and the right of “free migration… for purposes of curiosity, of trade, or as permanent residents,” in later years Americans changed their mind and started using whatever constitutional justification they could think of in their support.
These racist policies were directly connected, however, to the second part of the poison: protectionism. Protectionism, for the uninitiated, deals with the use of forceful law to manage the economy in pursuit of a desired goal, in many cases the inflation of wages or imported goods. The reason these two poisons are tied together is that the Chinese immigrants, as a general group, were able and willing to work for less money than the “natives” who were accustomed to higher wages. When employers saw the economic benefit in cutting costs by employing individuals at a lower rate, the natives grew restless and the race wars fomented. The labor unions at the time termed “illegal immigrant” as a pejorative and fought to expel the cheaper competition; ironically, the entities so despised today by conservatives are they who lobbied for the original federal laws that created illegal immigration!
Both racism and protectionism are evil—nobody has the right to deny another individual, regardless of race, the right to rent or purchase private property (and therefore cannot delegate that authority to the government they have organized), and nobody has the right to mandate through law that their industry be favored through tariffs, salary caps, minimum wage, or anything related.
And yet, these two poisons have produced the rotting tree we now call immigration law; rather than felling it and starting fresh, many people want the tree to grow and extend its branches—all while ignoring the roots.
Finally, our review of the Court cases should be seen as an interesting experiment in justification of constitutional authority. The patient reader who made it all the way through the above material will note the varying citations offered over the years as reason why the power to restrict the emigration of individuals, and deport those deemed unworthy, is constitutional. No less than four references have been made—the commerce clause, the power to repel invasions, the naturalization class, the implied powers as a sovereign nation. One would think that if the federal government did indeed have the power to regulate immigration of individuals, not only would they have done so at some point during the first century of the country’s existence, but they would be able to generally agree on the source of that authority.
Having now taken the time to look over the history of the issue, it becomes necessary to mention and rebut several key arguments often made in favor of our current immigration laws. Once complete with the nitty gritty, we’ll conclude with a high-level analysis of the various issues presented. We start with the only argument that carries any weight in the entire matter (for, if the federal government lacks any authority to manage immigration, then all the other perceived benefits and problems associated with the issue are not valid justification for imposing such laws), and then explore the secondary arguments.
“Our immigration laws are constitutional”
False. The closest argument that can be made in defense of this statement is to point to the naturalization clause, which gives Congress the power “To establish a uniform rule of naturalization”. What is naturalization? Noah Webster’s 1828 dictionary defines it as:
The act of investing an alien with the rights and privileges of a native subject or citizen.
Thus, naturalization is the power to transform an alien into a citizen. Naturalization is not the same as immigration, as immigration is the process of traveling and residing in a certain locale, and naturalization is the process of granting the rights of citizenship to that individual.
Those who rely on the naturalization clause for their support of our federal immigration laws ironically employ the same method used by federal expansionists of opposing political ideologies. While others may ignorantly (or deviously) rely on the commerce clause, general welfare “clause”, or the necessary and proper clause for their statist desires, those who use the naturalization clause in defense of federal immigration policies are doing the same thing. Both use a specific grant of authority and warp it into something completely different in an attempt to justify the unconstitutional status quo they prefer.
As the Court has previously done, some may refer to the commerce clause, power to repel invasions, of the inherent right of a sovereign nation. The commerce clause argument only applied to the state-enforced taxation, and cannot be used to regulate the peaceful migration of an individual. The sovereign power argument is a glaring and dastardly conflict with the limited and enumerated powers conferred by the states upon the federal government through the creation and ratification of the U.S. Constitution, and as Justice Brewer wrote in his dissent, “Where are the limits to such powers to be found, and by whom are they to be pronounced?” This is an assumed power excused by an appeal to international law, and is easily proven fallacious and should be outright rejected by the very crowd who in other cases objects to using international law and implied powers as arguments for federal arrogation of authority.
Now, a word about the invasion argument. The same section of the Constitution that provides for authority to regulate naturalization also says that Congress may “provide for calling forth the Militia to … repel Invasions.” Article IV Section 4 also requires the federal government to protect the states against invasion. Many people argue that the aggregate actions of immigrants in crossing our borders constitues an invasion, and thus merits response as constitutionally authorized. Organizations such as the John Birch Society, Constitution Party, the Eagle Forum, and others all use this constitutional provision as justification for federal immigration laws. Ironically, these same people look with great alarm to the Wickard v. Filburn case previously mentioned for its use of aggregate activities to justify an expansive and liberal reading of narrowly-intended clause. This cognitive dissonance is striking.
Looking closely at the matter though, it is apparent that the peaceful migration of an individual cannot be lumped in with the actions of other independent people and classified as an actual invasion. We are talking about a group of unconnected individuals acting of their own accord and seeking disparate goals—not a coordinated effort by a nation, military, or other organization working towards a common goal and actively seeking to undermine the sovereignty, security, and strength of the country. Consider James Madison’s arguments regarding the power of repelling invasions in Federalist 43:
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. … Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.
What Madison is describing has nothing to do with the collective actions of freely-migrating individuals, some of whom may be violent criminals, or others of whom may be a drain on society welfare programs. When speaking in the Virginia Ratifying Convention, Madison made clear that the mention in Article IV cannot in any way be re-interpreted in order to support the restriction of migration:
The word invasion here [in Article IV Section 4], after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by other states. A republican government is to be guarantied to each state, and they are to be protected from invasion from other states, as well as from foreign powers; and, on application by the legislature or executive, as the case may be, the militia of the other states are to be called to suppress domestic insurrection
We have an explicit example of the application of the invasion clause to immigrants due to the Alien and Sedition Acts. These were four bills passed in 1798 by the Federalist-controlled federal government, two of which dealt with aliens and provided that they may be deported from the country if deemed (without due process) to be a threat or if their country of origin was at war with the United States of America. Virginia was one of the states which protested some of the draconian measured included in these laws, and created a commission to investigate and recommend a resolution for the general body. In his Report of 1800, Madison, leading the commission, included the following in his proposed resolution (which passed):
It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.
The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same Under the general power, if this regard to greater caution had been omitted.
Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.
Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious. (emphasis added)
In short, the collectivization of independent individuals into an aggregate block determined to be invading our country is without merit. A simple appeal to individual rights destroys the broad brush attempt at attaching the actions of a few people to the whole. If Juan from Guatemala is a peaceful, hard-working individual with no violent tendencies whatsoever, no desire to attack or undermine the government, and no intention of being a dependent, how can his desire to live and work in the United States be construed as an invasion? Only an expansive and problematic interpretation can attempt to justify such an argument.
Liberty-minded people reject any collectivization of individuals and the denial of one’s rights and privileges based on the actions of another. Only pro-centralization statists ignore such conundrums in favor of viewing aggregated statistics and trends to determine public policy. As Jefferson argued, “I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.”
Before concluding with this issue, one other item should be mentioned. Until very recently, I had not once seen or heard this line from the Constitution used in defense of federal immigration laws, likely because it is generally understood that it has no application. In Article I Section 9, we read the following:
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.
Section 9 of the first article of the Constitution is often given the subtitle “Limits on Congress”, for every directive listed therein is a negative description of what Congress cannot do. Taken in that context, it becomes clear that nothing in a limiting clause can be construed to delegate a new power to the Congress—the exceptions and restrictions listed must refer to other powers explicitly delegated. A casual reading of this clause leads to the reader to assume that it is referring to the practice of slavery, and this assumption would be correct. Some, however, focus on the word migration, and infer that after the year 1808 Congress was no longer prohibited from prohibiting migration, and therefore could after that time prohibit it—arguing, incorrectly, that a prohibition of a power was at the same time a conditional delegation thereof.
Several sources support the view that the clause has only to do with slavery, and not the general migration of free persons. In one of James Madison’s private letters, for example, he indicates that the convention’s use of the word migration referred to slaves, criminals, and perhaps free blacks as well.
As slaves were being bought and sold like common wares, the slave trade was an area of interstate and foreign commerce, and thus subject to Congress’ regulation power. This negative restriction on Congress, then, effectively said that they could not use their commerce regulation authority to ban the slave trade until after the year 1808. Since free individuals come and go voluntarily and not as bought and sold goods, their movements (migration) cannot and do not fall under the commerce power. This understanding was agreed upon by Justice Marshall when writing the Supreme Court’s opinion on Gibbons v. Ogden in 1824:
But it is obvious that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the preexisting right of the States to admit or exclude, for a limited period. The words are
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 1808.
The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the Court to convey this idea unequivocally. (emphasis added)
Half a century later, in 1883 the Court opined in People of the State of New York v. Compagnie Generale Transatlantique that:
We know of nothing which can be exported from one country or imported into another that is not in some sense property—property in regard to which some one is owner, and is either the importer or the exporter. This cannot apply to a free man. Of him it is never said he imports himself or his wife or his children. The language of section 9, art. 1, of the constitution, which is relied on by counsel, does not establish a different construction:
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 1808, but a tax or duty may be imposed on such importation, not exceeding $10 for each person.
There has never been any doubt that this clause had exclusive reference to persons of the African race. The two words ‘migration’ and ‘importation’ refer to the different conditions of this race as regards freedom and slavery. When the free black man came here he migrated; when the slave came he was imported. The latter was property, and was imported by his owner as other property, and a duty could be imposed on him as an import. We conclude that free human beings are not imports or exports within the meaning of the constitution. (emphasis added)
The fact that a very limited number of Court cases even reference this constitutional prohibition on Congress at all, coupled with the almost universal lack of its use by individuals as justification for federal immigration law, shows a general understanding and agreement that the word migration had to do only with blacks, whether free or enslaved, with no application to the general migration of free, peaceful individuals, and that its inclusion in a negative exclusion did not delegate any new power to Congress.
“Illegal immigrants are a drain on the economy and take American jobs”
False. This argument is, of course, the direct descendant of the arguments used by the influential railroad unions to excoriate the Chinese who were willing to work for less money, thus siphoning away jobs from those who felt entitled to them, and at a higher wage.
However, defining the vague “drain on the economy” reference depends on who you talk to, and what data is being used. If somebody loses their job as a result of the employer deciding to hire workers who will work for less, then clearly that person feels that the economy is suffering since they are suffering (as the saying goes, “when your neighbor loses his job, it’s a recession, and when you lose your job, it’s a depression”). But this story is, in the aggregate, an emotional one—and one that is capitalized upon by politicians. Consider the following advertisement produced by the Coalition for the Future American Worker, an organization comprised of groups such as NumbersUSA and the Federation for American Immigration Reform, which advocate the imposition of firm caps on all forms immigration, legal or otherwise:
There’s even a Reclaim American Jobs Caucus in the House of Representatives, currently comprised of 41 members, which asserts that “the link between unemployment and illegal immigration is clear.” This caucus supports “turning off the jobs magnet,” as if you can somehow successfully disincentivize people from wanting to work for more money in better conditions—whatever the laws and risks involved may be.
We’re told by such groups that the existence of millions of illegal immigrants—nobody really knows how many there are—is itself a theft of American jobs, and that if these people were somehow mass deported (or employers threatened with enough fines and imprisonment for hiring them), those employment opportunities would be available to the “natives”. Some groups, such as in the video shown above, focus on legal immigrants, while others, such as the Caucus just mentioned, hone in on the “illegals”. Regardless, their argument is the same: the introduction of immigrants into American society steals wealth and employment opportunities.
[T]he impact of immigration [on a nation's economy] remains small, for several reasons. Immigrants are not competitive in many types of jobs, and hence are not direct substitutes for natives. Local employers increase demand for low-skilled labor in areas that receive low-skilled immigrant inflows. Immigrants contribute to demand for goods and services that they consume, in turn increasing the demand for labor. And immigrants contribute to labor market efficiency and long-term economic growth.
The reality is that immigrants play a key role in our society. In all 25 metro areas we studied, the economic role of immigrants were all significant as immigrants contribute to the economy in direct relation to their share of the population.
Many observers believe that a legalization program could have a significant economic impact. Our research suggests otherwise. This report finds that legalizing most currently unau- thorized immigrants would not lead to dramatic changes in the labor market, either for unauthorized immigrants or for native workers. We also find little evidence to support the view that such a step would have significant effects on the broader economy, particularly on tax revenues or public assistance programs.
Additionally, the Cato Institute has described some of the higher-level impacts immigrant labor creates:
The addition of low-skilled immigrants expands the size of the overall economy, creating higher-wage openings for managers, craftsmen, accountants, and the like. The net result is a greater financial reward and relatively more opportunities for those Americans who finish high school.
Finally, a recent report by the Center for American Progress and the American Immigration Council contends that the legalization of the illegal immigrant population “would raise wages, increase consumption, create jobs and generate more tax revenue.” Immigrants, legal or otherwise, are not the bloodsucking leeches they are portrayed by many to be, selfishly stealing the blood rightfully belonging to the body they are attacking. The very presence of these individuals introduces additional demand and consumption, and the lower wages many of the immigrants receive allows those with whom they transact to save resources and invest them elsewhere.
We tend to focus on the contributions of the low-skill laborers themselves, but must not forget the productive increase immigrant entrepreneurs bring to our country. According to a recent study by Duke University, one quarter of technology companies started in the U.S. between 1995 and 2005 had at least one immigrant founder. These companies hired 450,000 workers and had a combined $52 billion in sales. Half of the start-ups in Silicon Valley were founded by immigrants. From MIT alone, foreign graduates have founded an estimated 2,340 active U.S. companies that employ over 100,000 people. And, interestingly, resident aliens contributed to an estimated 24.2 percent of international patent applications in 2006.
To be sure, Americans who work in low-paying jobs have competition when immigrants are able and willing to work for the same price or less. However, this impact is small when compared to the economy as a whole, and cannot be used as the basis for protectionist policies that aim to save these jobs. The government’s role is not to bail out big corporations or save jobs for those with little to no skills. Rather, the government exists to secure individual liberty. Nobody is guaranteed employment, and thus the government cannot morally intervene to manage the economy in favor of one industry, socioeconomic class, or other group.
We should also rebut the notion that jobs can be stolen by anybody, including immigrants. Jobs are not owned, nor are they an entitlement. They are not property to be defended through law, nor is any job forcibly stolen when the employer terminates his relationship with one employee and hires another. A job is a contract between two voluntary parties who mutually consent to the terms of employment. It is, therefore, a fallacious statement to say that illegal immigrants (or anybody) has “stolen” “American” jobs, for individuals engaging in commerce within a free enterprise system are the ones who determine to whom their money will be given, and under what terms.
Does a Utahn steal a Texan’s job when he moves to another state? If I, as an employer, decide to move my business from California to North Dakota, am I stealing anything from my former employees who cannot make the move to another state? If the answer to these questions is no (and it is), then how is the action any different when discussing national borders as opposed to state borders? American citizens from different states cannot steal jobs, nor can immigrants, legal or otherwise.
The issue of employment aside, we may look at another related issue, such as the supposed “cost” of illegal immigrants. This strain of the argument we’re addressing claims that the existence of illegal immigrants is a drain on the society as said individuals use up resources and participate in social welfare programs without paying into the system as Americans are required to. But does this concern have any merit?
A report by FAIR (one of the anti-immigration organizations mentioned above) claims that illegal immigrants cost the government (state and federal, combined) $113 billion per year, the largest expenditure being the education of the immigrants’ children. Conversely, a 2008 report by the Perry Group states that the elimination of the “undocumented worker” labor force would have a net negative impact on the economy, completely contradicting the claim we’re discussing. According to their report, this action would remove $1.8 trillion in annual spending, $652 billion in output, and 8.1 million jobs. They also state:
If all undocumented workers were removed from the workforce, a number of industries would face substantial shortages of workers, and Americans would have to be induced into the labor pool or provided incentives to take jobs far below their current education and skill levels. For this phenomenon to occur to a emaningful extent, substantial wage escalation would likely be ncessary, thus eroding competitiveness in global markets.
As the domestic workforce becomes older, more stable in number, and better educated, the U.S. production complex increasingly requires foreign, low-skilled workers.
Additionally, contrary to popular wisdom, immigrants on the whole pay more in taxes than they receive in benefits. If a wiser method of taxation were implemented—repealing the punishing income tax as the primary objective—the ratio of taxation to benefits would significantly increase.
All of this data ignores, however, the underlying poor policy. The existence of social welfare programs—un-constitutional at the federal level, and unwise at the state level—does indeed introduce a cost, but these programs should not exist in the first place. Americans have figured out how to vote for themselves the wealth of other individuals, and now that the loot has been collected, they wish to build up walls around it so that only they can have access. A respect for liberty demands removing these programs (thus removing the available benefits and corresponding incentives enticing “illegal immigrants”), changing our form of taxation, and allowing free enterprise to take its course. The “cost” being complained about is merely the addition of new players in a broken system. Don’t blame the players—fix the system!
It makes no sense to punish the would-be worker or his employer (through programs such as E-Verify) for the desire to engage in commerce. Why should these individuals be punished for peaceful and productive work? The real problem is and always has been the creation, expansion, and perpetuation of welfare programs offering “free” incentives, encouraging dependency, and discouraging the desire to have to earn one’s own way. Imposing fines and threatening imprisonment or deportation of those who which to simply engage in commerce is, at its core, a form of oppression against those who simply desire to freely associate and pay their own way.
Perhaps a more personal example would be instructive.
For the past few weeks, my wife and I have been building out our basement. During the process, we solicited various bids from contractors and workers recommended to us by others. When it came time to employ somebody to do our drywall, we ended up going with a company whose price was half of the other quote we received. The men who showed up were likely “undocumented workers” (I didn’t ask, as it’s not my business, and I frankly don’t care), spoke little English (it was a great opportunity for me to practice my Spanish), and yet their work was superb. They worked 12 hour days, rarely took breaks, and we were very impressed with the quality of their work.
The protectionist will scoff at the above story—indeed, I have been told that I’m “part of the problem” by employing these individuals—and argue that I’m hurting the employment opportunity for Americans by not employing them instead. But why should I be required to pay more for the same (and, likely inferior) level of service? Should the government forbid us from purchasing items from China because they are cheaper, and may put American manufacturers out of business? Should Wal-Mart be closed by executive fiat since more expensive “ma and pa”-type shops cannot compete?
As with all questions of public policy to secure liberty, we must look to the individual. I saved thousands of dollars by employing these men. I was able to engage in commerce with whoever I desired. I provided employment to individuals who will in turn use that money to pay rent, buy gasoline, purchase food, etc. Wealth was generated, as my home’s value has now increased as a result of their work. And the money I saved by hiring them allows me to employ yet other individuals; had I been required to “buy American”, who knows if and when I would have been able to proceed with the other projects in my basement.
One might still argue that some of the money I’ve given to these men will be sent to their country of origin to support the families there. It should be noted, however, that money is not wealth, but the mere representation of labor, and the opportunity to compensate others for their own labor. I received a drywalled basement, they worked for dozens of hours, and wealth on both sides was created as a result of this fair and honest exchange. Though some money may be transferred, I still keep my basement, and my home retains its increased value. The ability to obtain money here and send it elsewhere does not discourage domestic activity, as the existence of millions of people here results in both ever-present demand for goods and services, and a workforce to productively provide for these things. Money is but an object to be used in demand for others’ labor; those dollars will, eventually, make their way back to America. The same exchange takes place, for example, when my wife buys DVDs dubbed in Swedish—we receive the goods, and the money leaves America and goes to Sweden. Should this be forbidden by law?
To summarize, the presence of additional people creates additional demand through an increase in consumption and labor. (After all, the logical extension of the argument we’re addressing implies getting into population control through caps on reproduction—something few people, especially in Utah, would support.) As such, the net effect of an increase in economic exchanges results in greater wealth for all involved. Here we see clarified in modern day example the Book of Mormon connection between free migration and prosperity. Perhaps James Madison said it best in a speech before Congress in 1790, when describing that immigration served to “increase the wealth and strength of the community.”
“Illegal immigrants bring violence and gangs to our country”
It alleged by some that the power to repel invasions should be invoked because of the strong criminal element that exists among the hoards of immigrants crossing the border in violation of federal law. The federal government’s response is justified and encouraged by supporters of this argument due to the “national security” concern this creates. Emails, blog posts, and other sources love to cite scary statistics as evidence of a calamitous infestation of gangs, drug wars, and other associated violence, but what does the data show?
Anecdotal stories can foment popular support for a particular piece of legislation, or capture the hearts of millions in demonstrating why harsher enforcement of illegal immigrants is needed. But if we’re to support any law that restricts the freedom of innocent, peaceful people due to the actions of violent offenders, we should at least first be clear about what the data says. Nobody disputes that among the group of immigrants coming into this country, evil people are to be found. Even in the trickle of legal immigrants allowed into this country we may find people who commit egregious, aggressive acts (the 9/11 perpetrators come to mind). The question, however, should be: compared to the normal/native population, do illegal immigrants have a higher rate of violence and crime? Should this be the case, then perhaps an escalated response might be warranted.
The Dillingham Commission mentioned in the history section of this article expressed the same worry about violence that we still hear 100 years later. Their concern was that the undesirable immigrants posed a serious threat to American society and culture, and thus should be banned. However when focusing their attention on the criminal aspect of the argument, they found little support:
No satisfactory evidence has yet been produced to show that immigration has resulted in an increase in crime disproportionate to the increase in adult population. Such comparable statistics of crime and population as it has been possible to obtain indicate that immigrants are less prone to commit crime than are native Americans. (emphasis added)
The following from a Cato Institute report agrees with the commission’s conclusion on crime:
Data show immigrants are less likely to commit crimes than the native-born, a pattern confirmed by a 2008 study of data from California: “When we consider all institutionalization (not only prisons but also jails, halfway houses, and the like) and focus on the population that is most likely to be in institutions because of criminal activity (men 18-40), we find that, in California, U.S.-born men have an institutionalization rate that is 10 times higher than that of foreign-born men (4.2 percent vs. 0.42 percent). And when we compare foreign-born men to U.S.-born men with similar age and education levels, these differences become even greater,” according to research by econo- mists Kristin F. Butcher (Federal Reserve Bank of Chicago) and Anne Morrison Piehl (Rutgers University and the National Bureau of Economic Research). Looking only at prisons, the researchers found, “U.S.-born adult men are incarcerated at a rate two-and-a-half times greater than that of foreign-bornmen.”
National studies have reached the conclusion that foreign-born (both legal and illegal immigrants) are less likely to commit crimes than the native-born. “Among men age 18-39 (who comprise the vast majority of the prison population), the 3.5 percent incarceration rate of the native-born in 2000 was 5 times higher than the 0.7 percent incarceration rate of the foreign-born,” according to the Immigration Policy Center.
Despite a dramatic surge in illegal immigration in the past two decades, crime rates are actually dropping in the country’s major cities. Take Los Angeles, for example, where an estimated 700,000+ illegal immigrants reside. In 2009, L.A. had the least amount of violent crime in more than half a century; the trend is the same in Washington, D.C., San Francisco, New York, Chicago, Boston, and Dallas.
Illegal immigration continues unabated and at an increasing rate, and yet according to one criminologist, “Experts did not see [the drop in crime] coming at all.” Even in Phoenix, capital of the state enjoying nationwide attention for its recent immigration law, violent crime plunged 17% between 2008 and 2009, shattering a near-mythical perception of increased immigration leading to increased crime. For the first quarter of 2010, violent crime was down 17% overall in the city compared to 2009, homicides were down 38%, and robberies were down 27%.
It seems that especially in recent years, immigrants are more concerned with getting to work than getting into trouble.
“Illegal immigrants break the law on a daily basis by their very existence in this country”
Dealing with this issue requires first understanding the nature of the (un-constitutional) law being broken. Assuming for the sake of the argument that the law itself was valid, its violation would be essentially equated with trespassing—residing on and traveling through property not owned by the individual. To understand the relative impotence of this argument, it’s important to distinguish the type of law. One type, malum in se, refers to things which inherently are wrong, and a violation of someone else’s life, liberty, or property: theft, murder, vandalism, etc. The other type, malum prohibitum, refers to laws that make actions criminal offenses just because the government says they should be, but not because they necessarily harm another person.
The supposed crime of “illegal” immigration falls into the latter category; nobody dies or becomes injured when Juan decides to cross the border into California looking for work. If you exceed the speed limit while driving, cross the street outside the boundaries of the cross-walk, smoke some marijuana, or clip a friend’s nails without a beautician license, you are not violating anybody’s rights, but rather are performing an action which a group of politicians has deemed worthy of regulation or prohibition.
This distinction is important, for it adds context and weight to the supposed crime being committed. If you were to to gauge the offense simply by public concern and outcry, one might assume that Juan’s border crossing is itself an atrocious crime against humanity meriting the most severe of consequences for justice to be served. No rights are violated in that crossing, however, and thus the action is only a crime because of statute. If a police officer who pulls you over for speeding decides to let you off on a warning, your neighbors and friends do not publicly protest the decision and demand that the harshest punishment possible be served. Instead, you are usually grateful to have your non-violent action go unpunished, and would agree that the offense itself was relatively insignificant. Cannot the same leniency be offered to individuals whose only alleged crime is the violation of an un-constitutional federal law?
A variation of the “breaking the law” argument offered by some Latter-day Saints seeks to use the 12th article of faith as reason why the (un-constitutional) federal laws should be supported, and why those in this country in violation of such laws are breaking the law on a daily basis. That article reads:
We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.
All this article says, though, is that we agree to place political leaders over us and obey the laws they pass, provided that such laws they implement and enforce are themselves lawful (and constitutional). As we’ve shown that federal immigration laws are not authorized in the Constitution, they therefore do not require our support.
Some also point to section 134 of the Doctrine and Covenants for support of the argument, which says, in part, that we “sustain and uphold” the government. Any favorable appeal to this scripture, though, requires ignoring numerous qualifiers and exceptions. For example, the few words just quoted are made relevant only “while [individuals are] protected in their inherent and inalienable rights by the laws of such governments.” I have the inherent right to contract and associate with whomever I please (the “control of property” mentioned in this section of scripture), and federal immigration laws restrict and remove that ability. A subsequent verse also states that “the commission of crime should be punished according to the nature of the offense.”
As it relates to this discussion (and going on the invalid assumption that the law is constitutional), Juan’s presence in the United States, contrary to federal law, should be punished to the same degree that you should be punished if you were to trespass on another person’s property. His border crossing is a misdemeanor, as are things such as public intoxication, indecent exposure, disorderly conduct, reckless driving, drug possession, etc. Where is the conservative-led outcry over jaywalkers?
“Illegal immigrants have no desire to assimilate into our culture”
Several founding fathers expressed a concern about the influx of immigrants into America, specifically, that such individuals would need to quickly adapt to American culture and society if the new government was to succeed and not be unduly influenced by outside sources. Our first president, for example, wrote in a letter to John Adams that immigrants should integrate themselves so that
by an intermixture with our people, they, or their descendants, get assimilated to our customs, measures, laws: in a word soon become one people.
James Madison is quoted by many as having said that America should exclude the immigrant who could not readily “incorporate himself into our society,” but this is taken out of context. The relevant text states:
I should be exceedingly sorry, sir, that our rule of naturalization excluded a single person of good fame that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but such as would be a real addition to the wealth or strength of the United States. (emphasis added)
It is here made evident that Madison was concerned not about aliens in general (those who emigrated to and resided in America), but individuals working to become citizens and thereby have opportunity to participate in (and influence) the government. A similar context-warping citation comes from Alexander Hamilton, who wrote the following:
The United States have already felt the evils of incorporating a large number of foreigners into their national mass; by promoting in different classes different predilections in favor of particular foreign nations, and antipathies against others, it has served very much to divide the community and to distract our councils. It has been often likely to compromise the interests of our own country in favor of another. The permanent effect of such a policy will be, that in times of great public danger there will be always a numerous body of men, of whom there may be just grounds of distrust; the suspicion alone will weaken the strength of the nation, but their force may be actually employed in assisting an invader.
Reading Hamilton’s whole letter, however, clarifies that a significant portion of his concern was also with naturalization—his goal being “the exemption of the citizens from foreign bias.” In Notes on Virginia, Thomas Jefferson wrote:
Every species of government has its specific principles. Ours…is a composition of the freest principles of the English constitution, with others derived from natural rights and natural reason. To these nothing can be more opposed than the maxims of absolute monarchies. Yet, from such, we are to expect the greatest number of emigrants. They will bring with them the principles of government they leave, imbibed in their early youth; or if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty. These principles, with their language, they will transmit to their children. In proportion to their numbers, they will share with us the legislation. They will infuse into it their spirit, warp and bias its direction, and tender it a heterogeneous, incoherent, distracted mass.
Born out of such concerns, the early naturalization laws passed by Congress required that aliens renounce under oath any and all previous allegiances to their countries of origin. The same requirement exists today for naturalization, with the following text included in the mandatory oath of allegiance during the naturalization process:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.
While these concerns are understandable when granting rights of citizenship (and influence in government) to aliens, the fears are largely unfounded when talking about your average immigrant. It’s important to note that the same arguments have been used throughout our country’s history; during the mass migration of the Irish to New York and Boston in the mid-19th century, for example, the natives likewise grew restless and vocalized doubts that the group would assimilate. The data, however, doesn’t support this concern, especially with regards to today’s level of immigration:
Scholars such as Samuel Huntington and Victor Davis Hanson argue that Mexican migration today is unique in U.S. history in its size and social impact.
They and others contend that, unlike previous immigrant groups, Mexican migrants retain close ties to their nearby homeland, dominate other immigrant groups in sheer numbers, and concentrate geographically into insular, Spanish-speaking communities that slow their assimilation. On closer examination, none of those concerns are serious enough to warrant increased restrictions on migration from Mexico. While the number of immigrants from Mexico is high in absolute numbers, the rate of immigration from Mexico in recent years is still lower than what it was for specific ethnic groups in the past. In the 1990s, an estimated 4.2 million Mexicans immigrated to the United States, both legally and illegally. That represents 1.5 Mexican immigrants per year per 1,000 U.S. residents. In comparison, during the two decades from 1841 to 1860, America absorbed an average of 3.6 Irish immigrants per year per 1,000 U.S. residents—more than double the current rate of Mexican immigration. For half a century, from 1841 to 1890, the rate of German immigration was heavier in every decade than the current inflow of Mexicans.
In the first decade of the 20th century, Russian, Italian, and Austro-Hungarian immigration each separately surpassed the current rate of Mexican migration. Yet the United States managed to absorb each of these distinct cultural and linguistic cohorts into American society despite the apprehensions of their contemporaries.
Despite the ever-present and somewhat xenophobic fears about the ability of immigrants (legal or otherwise) to assimilate, this country’s history shows long-term trends clearly indicating that the concerns are unfounded. (Yes, immigrants may bring with them bad ideas for government and society, but Americans generate plenty of idiocy and poor policy on their own.) America, to this day, has demonstrated itself to be a great engine of assimilation. The Borg would be proud.
“Amnesty is immoral and a violation of the rule of law”
At the outset of this article, I declared that I supported amnesty for illegal immigrants. Let’s define what that means. Amnesty implies forgiving the violation of a law—in other words, applying mercy rather than imposing justice.
To those who assume that the federal immigration laws are a wonderful thing (even if they are flawed to some degree), amnesty means the legalization of those who have invaded our country and break the laws of the land by their very existence within our country’s borders, as well as consent of their participation in our workforce and economy. This is to be treated as heresy, of course, and the extent to which most conservatives disagree with such a proposal is evident in the readily visible and spasm-inducing reaction most have when asked to consider the thought.
To those who instead understand the arguments made in this article, specifically, that our federal immigration laws are un-constitutional, amnesty means a defense of individual liberty, adherence to the Constitution, and an increase in our general prosperity. If the laws in question are the reason we are discussing justice versus mercy, and if such laws are nowhere authorized in the Constitution, then the imposition of penalties to enforce them is itself an immoral act. Amnesty, rather than being immoral, becomes the only moral thing to do. Jefferson noted that any such laws exceeding the clear delegation of powers granted to the federal government would be “altogether void and of no force.”
Clearly, my advocacy for amnesty does not include looking the other way for actual crimes committed in violation of legitimate law. Identity theft, fraud, rape, vandalism, and other crimes should all be prosecuted (when the victim wishes to pursue legal recourse) just as they should be for American citizens. Amnesty does not seek to give “illegal immigrants” a clean slate for every action, but rather supports their legalization in terms of residence and migration only.
Those who ignore the constitutional question and seek still to uphold the federal immigration laws, citing their need, usefulness, or importance, become hypocrites, for such people often challenge the constitutionality and morality of other laws with which they disagree. An honest adherence to principle requires applying the same standard in this issue as in all others.
Amnesty is not immoral—the imposition of penalties or deportation of an individual for failing to comply with an un-constitutional law is. Amnesty is not a violation of the rule of law—allowing federal immigration laws to exist and be enforced, despite no constitutional authority, is itself a violation of the rule of the supreme law of the land.
“State-controlled immigration laws would be a messy patchwork”
Individuals who support federal immigration law often point to the supposed undesirable effect state-based laws would have in creating any sort of sane, workable system. This objection contends that such a practice would be inefficient, difficult to enforce (due to limited state budgets and personnel), and, as the New York Times put it, would “cause havoc”.
Interestingly, this point was asserted by the federal government just days ago when announcing its challenge of the controversial Arizona immigration law. According to the Justice Department in their motion for a preliminary injunction:
The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.
In light of the historical evidence here provided, this claim is as absurd as Congress saying they are authorized by the Constitution to require individuals have health care, for example. And yet it is quite unsurprising that they have imagined up the idea that the authorization does indeed exist. Even as far back as the 1875 Henderson case, you’ll recall, the Court was arguing that since “Congress can more appropriately and with more acceptance exercise” the power over immigration law, the matter was “effectually and satisfactorily settled”.
Sadly, the trend of centralized homogenization in public policy has, for over a century now, continually moved what were traditionally state issues to the federal government. In a country as large as ours, the major downside to this is, of course, that an individual who disagrees with the law is left little recourse in opting out. Were such matters left to the states—the “diverse laboratories of democracy,” as Justice Brandeis called them—those who opposed a Texas immigration law could vote with their feet by moving to another state whose laws were more to his liking, while yet remaining an American citizen and enjoying the protections of the U.S. Constitution.
Some of the most important and legitimate laws in existence—those punishing criminal offenses such as murder, rape, and vandalism—are within the domain of the several states. These laws, in harmony with the primary purpose of government itself, are a perfect example of the much-maligned “patchwork” so feared in regards to immigration. History has shown that such laws tend to harmonize, meaning that while each state retains authority over what punishment will exist and on what conditions, these issues by and large are similar between each state.
A patchwork of laws is not to be feared, but to be welcomed, as each state asserts its own sovereignty in regards to domestic matters, pursuing through the political process those policies and outcomes that are most desired by its people.
A word on Arizona
A discussion on immigration in 2010 would not be complete without addressing the controversy brewing in Arizona. On April 23, Arizona Governor Jan Brewer signed into law a bill to enable state law enforcement officials to detain, report, and deport illegal immigrants to federal authorities, among other things.
This new law is the latest in a string of attempts by Arizona to solve a very real problem it faces, being one of a few border states shouldering the burden of immigration—just as east coast states did two centuries ago. Back in 1994, for example, Arizona joined Florida, Texas, California, and New Jersey in suing the federal government for billions of dollars in restitution for having to imprison and offer mandated services to illegal immigrants. As one law professor noted, “There are so many reasons why those lawsuits are fatally flawed. Legally, they are without merit. The U.S. has sovereign immunity. It cannot be sued for monetary damages unless it agrees to be sued.” So much for justice.
At a high level, Arizona’s new law might be considered a good thing—any state asserting its own sovereignty in regards to a power not expressly delegated to the federal government should generally be applauded. However, while Arizona should indeed take things into its own hands (primarily for security reasons, secondarily for constitutional reasons), they have gone about it the wrong way. Rather than assert their authority and regulate and enforce immigration law on their own, as their legislature sees fit, Arizona has further bound itself to the un-constitutional federal immigration laws. Reading the bill, one finds this introductory paragraph explaining the “intent” of SB1070:
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. (emphasis added)
The word “federal” appears 37 times throughout the bill, cementing a reliance upon usurped federal authority as pretext and justification for the state merely helping enforce the federal laws. Ironically, the bill itself is not necessarily a bad thing—only its declaration of authority. Rather than pointing to themselves and stating what they will do, they are pointing to the federal government. Had Arizona simply copied and pasted the relevant statutes from federal law into their own, their actions would be far more justified and constitutionally authoritative.
The Latter-day Saint Connection
For better of for worse, members of The Church of Jesus Christ of Latter-day Saints are in the thick of the immigration issue. The sponsor of Arizona’s new law is LDS, and so is the Utah state representative, Stephen Sandstrom, who is seeking to implement a similar law in the next legislative session. Missionary work is successful and ongoing amongst individuals likely here illegally, according to federal law, and the Church allows such individuals to hold callings, enter the temple, and serve missions.
Said Elder Jeffrey R. Holland: “We’re not agents of the immigration service, and we don’t pretend to be, and we also don’t break the law.” Elder Marlin K. Jensen framed the issue in similar context provided in this article: “The church’s view of someone in undocumented status is akin, in a way, to a civil trespass. There is nothing inherent or wrong about that status.” Jensen was asked by Church President Thomas S. Monson in January 2008 to urge Utah legislators to use “compassion” when constructing legislation. Some might equate compassion with mercy or amnesty—a proposition that produces many of the same arguments and statements made two centuries ago, all tainted with racism and protectionism.
Recent legislation is harming the Church’s efforts to attract new converts, and some Latter-day Saints, including Utah Attorney General Mark Shurtleff, are appealing directly to President Monson for a statement on the matter. Governor Gary Herbert, also a Latter-day Saint, has expressed support for Utah taking charge (presumably in a manner like Arizona’s law provides), noting that “the federal government still has a responsibility to do what they need to do.”
All of the vitriol, the protectionism, and the baseless “rule of law” arguments, though, fall far short of the ideal introduced at the beginning of this article. You’ll recall the near-utopian benefits explained by the narrator as having resulted from a policy of free migration: uninhibited commerce, increased production, and skyrocketing prosperity for all involved. It is true that such results and policies came after “there was peace in all the land,” and that our geopolitical climate today bears no resemblance to that state of affairs. One cannot argue, however, that the hard-working migrant who bears no ill will towards any man or government desires anything other than peace, and the resulting policies and benefits. That gangs and druglords and murderers and rapists exist among the subset of people known as “illegal immigrants” is no moral justification for punishing and refusing commerce and intercourse with those who have done no wrong. Similarly criminal elements exist within our own society, yet few advocate the restriction of freedoms for all 18-30 year-old males, for example.
Church members are encouraged to treat “illegal immigrants” with compassion, both individually and through public policy. Few, however, can articulate what a tangible manifestation of such a feeling would look like, for compassion’s close cousin, as noted, is amnesty—a political proposal most conservatives detest. Yet these individuals are our brothers and sisters, and most desire the same things each of us do: a better life. America can offer that, and the prospect of that better life hangs over others’ heads as an alluring incentive. This may not be a strong enough reason for some people to permit all those who want to come, but it certainly is reason to do away with hateful language, protectionist policies, and a mob mentality.
What would Jesus do if he were on Earth and had to navigate the massive barriers—both legal and physical—erected to manage immigration? I can’t imagine he’d wait around for a green card in hopes of making a visit to the United States.
Some readers may disagree with various data and arguments presented in this article, but all secondary and supplemental arguments are of lesser importance. What matters most to the discussion at hand is the authority to regulate and restrict immigration. For the first century of this nation’s existence, immigration policy was left—reserved, actually—to the several states. Nowhere in the U.S. Constitution was this authority delegated to the federal government. Its gradual usurpation and arrogation, as has happened in so many other spheres of public policy, while not surprising, should not be supported (indeed, it should be actively opposed).
For those who classify themselves as followers, students, and defenders of the Constitution, the immigration situation presents only one clear and compelling path: treaty any federal regulation as a fraudulent theft of state sovereignty. The only proper way to allow the federal government to intervene in these matters is through a constitutional amendment, so that the states may delegate their power to the centralized entity established to govern regarding similar matters of national importance. (Frankly, given today’s political climate, such an amendment would likely pass quite easily.) Unless and until an amendment passes, states should assert their own sovereignty in dealing with immigration law, and refuse to rely, as Arizona mistakenly has, on un-constitutional federal laws for their justification and support.
If our ideal future as individuals is peace and prosperity, and regardless of whether immigration law rests in the hands of the states or the federal government, we must consider the example offered by the Book of Mormon and work to produce the same outcome. Latter-day Saints especially—those who see the Constitution as inspired, who often give lip service to the freedoms they enjoy, and who have been counseled to follow such high ideals as loving their neighbor, treating others (regardless of federally-imposed legal status) with compassion, and doing unto others as they would have done unto them—should support laws that will enable more people, not less, to enjoy what America has to offer.
Free migration does not erase borders. Residence and citizenship are separate issues. All people, not just Americans, have natural and inalienable rights. Nobody is entitled to a job, nor a certain level of wages or salary. Peaceful, productive people are not our enemy, are not invading America, and should not be used as scapegoats in the xenophobic, protectionist attempt to “secure the border”.
Tyrannical countries and closed-down societies build fences at their borders—not a country regarded by many (perhaps foolishly) as a paragon of liberty. America was not intended to be a country where the Constitution does not apply within 100 miles of the borders, where individuals are encouraged or required to be ready at a moment’s notice to prove their government-sanctioned legality, or where the freedom of association is suppressed and outright obliterated where it matters most: with families.
America is better than this. We’re not just about making money and living in a relatively safe environment, but about asserting our individual rights and perpetuating the American dream down through the generations, and outward to our fellow man. We should spend our time and energy in building bridges, and not erecting barriers. We should be promoting peace while reaping the benefits it brings, advocating free migration as a method of securing the freedom of association and maximizing prosperity. And most of all, despite the popular political rhetoric, we should be maintaining state sovereignty and supporting and defending the Constitution—a document that nowhere within its 4,500 words delegates to the federal government the power to regulate or restrict the immigration of individuals.
My thanks to Jeff Thayne for his assistance in providing research for this article.