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Sunday, December 19, 2010

"Thoughts on Congressional Immigration Authority and Law"

Thoughts on Congressional Immigration Authority and Law

Does Congress have the authority to legislate concerning immigration?

Many people have said that the authority of Congress to legislate and regulate "immigration" can be found in Article 1, Section 8, clause 4 of the federal Constitution, which states,

"The Congress shall have power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;"

However, this cannot be so.  There is a HUGE difference between "naturalization" and "immigration."  When one looks up "naturalization" in the dictionary (the preferable dictionary would be the Oxford English Dictionary), the definition shows that naturalization denotes the road to citizenship within a specific nation.  This concerns individuals who are ALREADY INSIDE OR WITHIN THE NATION UNDER CONSIDERATION, NOT INDIVIDUALS WHO ARE SEEKING TO ENTER THE BORDERS OF A NATION.  The word that defines the concept of individuals wanting to cross over international boarders into a specific nation is "IMMIGRATION."  "NATURALIZATION" concerns only those individuals who are already in that particular country and that are seeking a path to citizenship, to become a citizen instead of a resident.  "IMMIGRATION concerns only those individuals who are trying to enter the borders of a nation.

Therefore, clause 4 in Article 1, Section 8 of the federal Constitution does not delegate authority to Congress to make laws concerning "IMMIGRATION," BUT RATHER, ONLY "NATURALIZATION."

Does Congress actually have the authority to make laws concerning "immigration?"  Well, this is a difficult question to answer.  I would argue yes, but only in a certain particular way, and this authority is to be found not in the clauses commonly quoted by people, but in a clause I have never heard anyone quote before.  The only place that authority could be plausibly said to be delegated to Congress to legislate (again, in a very specific way) concerning immigration is in clause 10 in Article 1, Section 8.  This clause says:

"The Congress shall have power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."

The Congress has the authority to "define and punish offenses against the law of nations."  This means that Congress can DEFINE what an offense against the law of nations is, and it has the authority to punish those offenders.  Congress can only legislate on the DEFINITION and PUNISHMENT of an offense against the law of nations, which, as I will explain in a moment, includes immigration issues.  But, Congress cannot, however, legislate concerning HOW individuals may immigrate into the U.S.  It can only say that if people immigrate into the country illegally, or rather, without the official permission of that sovereign nation, particularly it's government, which is an offense against the law of nations, they are guilty of this offense and Congress can define the punishment.  Entry into a sovereign nation's borders without the official permission of that sovereign nation is indeed a violation of international law, or the law of nations.  EVERY NATION IN THE WORLD HAS THIS AUTHORITY AND DOES INDEED ENFORCE IT.  It is denoted by the very term "sovereign nation!"  I cannot think of a single sovereign nation that allows any foreign individual to enter it's borders/lands without the permission of the national government.  All nations have rules and regulations concerning the lawful entry of immigrants or temporary visitors.  This is why all must have passports.  It is international law.  

But, in Congress's case, it cannot make laws concerning HOW individuals immigrate, except by DEFINING that entry without permission from the government is an offense against international law, which it has already done.

Therefore, Congress has only a very specific and detailed way that it may legislate on "immigration;" by defining what an offense against the law of nations is.  And because entry into a sovereign nation's borders without the permission of that nation is indeed an offense against international law, and because Congress may define an offense against international law (and indeed it already has), it is indeed an offense against the law of nations to enter into the sovereign United States of America without its official permission.

But does Congress has the authority to define or legislate what the "official permission" is?  Yes.  It is provided in the very clause quoted above.  Whatever Congress's definition of an offense against the law of nations is, that is the way individuals cannot enter into the borders of the sovereign country.  This denotes that there must be a legal way; that legal way is the exact opposite of how individuals CAN'T enter the country.  Because Congress has defined an offense against the law of nations as entering the United States borders without official permission from the federal government, it necessarily means the opposite of that definition means entering the borders of the country WITH OFFICIAL PEMRISSION, which is defined as by a VISA or Passport.

Thus, it is the Congress’s definition that if an individual or group of individuals enters the borders of the sovereign nation that is the United States of America, without official permission represented by a VISA or Passport, then this is an offense against the law of nations.


James Wilson of Pennsylvania, a framer of the Constitution, wrote the following concerning the law of nations:



"The law of nature, when applied to states or political societies, receives a 
new name, that of the law of nations."
-James Wilson, "Of the Law of Nations, Lecture of Law" (found in Philip Kurland and Ralph Lerner's The Founder's Constitution, Vol. 3, pg. 70)

In the law of nature, we have no right to trespass on the private property of 
another without their permission or invitation.  Thus, in a state of society, 
the people of one society, while free to leave that society and move to another, have no right to trespass on the property of another sovereign nation without that nation's 
permission or invitation, just as a man may not trespass on the property of another man without consent of the owner, either in a state of nature or in a state of society.  Thus, a sovereign nation has the inherent right, according to the law of nations, to make laws 
concerning who comes into their lands and who does not, and how they may immigrateor pass through, be it with visas and passports or with no such requirement at all, having completely open and porous borders.  
 
In America, we have a constitution of specifically delegated powers, with specific 
limited powers delegated to the federal government, and the rest of those sovereign 
powers residing with the people or the states if the people of those states have delegatedsuch authority to their individual state.  All this is made clear in the 10 Amendment to 
the Constitution.  Thus, in America, the power to regulate or make laws concerning 
immigration must be delegated to the federal government via the Constitution.  And I 
believe such a power has been delegated, via Clause 15 under Article I Section 8 
concerning the power of Congress to define and punish offenses against the law of 
nations.  Because the law of nations, being an extension of the law of nature, says that 
nations have the sovereign authority to declare who may enter and may not enter and how they may enter their sovereign territory, and because Congress has the authority via Clause 15 to define offenses against the law of nations, it has the authority to define that entering a nation without that nation's authority is an offense against the law of nations.And by extension of this ability to define such offense, Congress has the authority to 
define that entering the US without the permission of the federal government is an 
offense against the law of nations.  And by nature of being able to define that entering 
a sovereign nation without its permission is an offense against the law of nations, 
including entering the US without the permission of the federal government, Congress also has the authority to state how one may legally enter the the borders of the US.

Also, because the law of nations as of now states that everyone must have a VISA or 
passport to enter the nations of the world, being that no nation I know of allows people into its borders without a VISA or passport, and given the US's own soverignty and 
Congress's ability to define offenses against the law of nations, Congress, in order to 
abide by the law of nations, must have the authority to issue passports to its citizens so 
that they may adhere to law of nations when traveling.  And by the nature of these 
things, Congress also has the authority to declare how it will let immigrants and visitors into its borders, and in our case, it has declared that immigrants may only enter US borders by VISAs and passports, following the law of nations.

It is my opinion that the federal government not only does, as explained, but should have the ability to make laws concerning how immigrants come in the US, precisely because if left the states, there would most likely result a hodge-podge of immigration laws, some more oppressive than others.  I believe it better to have one national rule for how immigrants or travelers may enter US national borders, for simplicity's sake.  I also believe that the federal government should regulate immigration so far to prevent truly dangerous people from entering our borders to commit attacks on our nation like those committed on 9/11, or people who have diseases and such.  I believe in order and in keeping a record, and allowing a completely porous border with no regulation of who comes in would result in chaos and could result in real and reasonable dangers, such as those mentioned above.  But I believe the US's immigration law should be liberal, in that it allows the maximum amount of people into the country possible, for free, or perhaps a small fee for the cost to create and mail a VISA, for this would be a reasonable expense.  I do not believe it should cost thousands or even hundreds of dollars to immigrate into this country.  It should be as cheap as possible, if not free, in order to give all people of differing economic statuses the opportunity to come here.  These are my views concerning immigration.  I believe in making immigration laws that  allow as many people into the country as possible, either for free or for a small processing fee, and that do not discriminate based on economic status, race, gender, age, skin color, religion, or any other outward characteristic that would not threaten the nation of America or its citizens.  I believe in liberal immigration laws, yet I believe it reasonable to allow the federal government the ability to prevent certain individuals from entering the nation, by denying VISAs, such as those who present real dangers to the country and its citizens.  Such dangerous people would include those on par with the 9/11 attackers, who have demonstrated that they have plans to harm America and its citizens, or those people who have infectious diseases that could spread and create a pandemic in America.  I believe it important for the national government to monitor who comes into the country when they enter our borders, for the sake of the nation's safety.  This is only reasonable, given the wicked and dangerous world we live now live in. 


We have now discovered together that Congress does indeed have the authority to legislate concerning immigration, albeit in a very limited and specific manner.  But, does Congress or any other branch of the federal government have the authority to actually patrol the borders and enforce that definition of “immigration?” 

Let us look again at the Constitution.  It is said in Article 1, Section 8, clause 15 that Congress alone may “provide for calling out the militia to execute the laws of the union, suppress insurrections, and repel invasions.”  This particular clause was a result of the inability of the Continental Congress, under the rules provided by the Articles of Confederation, to call out the militia in order to suppress the insurrection begun and led by Daniel Shays, also known as “Shays Rebellion,” which took place in 1786-1787.  It was left to the governor of Massachusetts to call out the MA militia and suppress the rebellion.  Congress could do nothing.  However, Congress has not  and most likely will not call out the militia to enforce the laws of the union unless those laws are not being enforced by the states or other localities of the US, or perhaps even by the executive branch.  Thus, while this Clause 15 in Article I Section 8 does provide means for Congress to enforce its immigration laws, it has not done so, and will not do so unless a state, other locality in the US, or the executive branch refuses to implement the laws.  Thus, we must look for another source of constitutional authority that allows Congress to patrol the boarders and enforce its immigration laws.


This ability of Congress to patrol the borders and actually enforce that definition of an offense against the law of nations is primarily shown in clause 18 of Article 1, Section 8, which says,

“The Congress shall have power to to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Therefore, yes, Congress does have authority to patrol the borders of the country and enforce the specific, limited laws made by Congress concerning immigration.


Congress has thus created the Department of Homeland Security, and under it, the US Boarder Patrol, which is apart of the US Customs and Boarder Protection, all under the executive branch as executive departments, which is charged with the task of executing the immigration law stating that no one shall enter into the US without a VISA or passport that Congress has passed under the authority of Clause 10, in Article I Section 8.  Congress has the authority to create such a department charged with executing that law via the Necessary and Proper Clause of the Constitution, as already mentioned.

But, does Congress have that sole authority of legislating concerning immigration, patrolling borders, and apprehending individuals who have broken the immigration law of Congress?  Many individuals say that that is indeed the case, and that individual states may not legislate whatsoever concerning immigration within their individual state boundaries, local state police entities within the individual states may not apprehend any offenders of federal immigration law, and that local state police authorities may not patrol the border.  They base this assumption on the so-called “Supremacy Clause” of the Constitution, which states:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
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Yes, the federal Constitution, and all laws made by Congress, by the authority delegated to Congress by means of the Constitution, are supreme, and trump state or any other local laws.  This is beyond dispute.  But the Constitution does not say anywhere that if Congress passes a law concerning a specific issue, and fails to mention that no other individual state legislators may legislate concerning this matter whatsoever, then the states may not legislate concerning that matter, period.  This is evidenced by the fact that numerous states have legislated concerning liquor laws.  The federal Congress has already legislated concerning national liquor laws, and under the above assumption concerning the Supremacy Clause, no state legislature would be abel to touch the topic of alcohol and liquor.  Only the federal Congress would be able to legislate concerning that topic, due to the Supremacy Clause.  The same would go for 2nd Amendment rights concerning firearms that each state constitution makes specific reference mention of. This type of interpretation of the Supremacy Clause would necessarily mean that there is no such thing as state sovereignty, as is guaranteed in the 10 Amendment in the Bill of Rights.  Whatever topic Congress legislated on, the state legislatures could not approach within the reach of a 10-foot cattle prod.  But that isn't the case.  Each state has a constitution, and each state has a legislature, which legislates on different matters within that individual state.  The aforementioned interpretation of the Supremacy Clause would necessarily mean that the individual state constitutions and state legislatures would not be able to exihsit, because the federal Constitution covers everything, therefore the states cannot.  This line of thinking is absurd.  Rather, the more appropriate meaning behind the Supremacy Clause says that insomuch as the Congress legislates concerning a particular issue (being that Congress is constitutionally allowed to legislate concerning that matter), state laws may not surpass or contradict federal congressional law.  It says nothing about the states legislating concerning the same topic.  Rather, the various states may indeed legislate concerning the same topic, INASMUCH as they don’t contradict federal law or surpass it in a manner than is not guaranteed to them by the 10 Amendment.  If federal laws concerning immigration do not specifically state within them that the individual states may not legislate concerning immigration whatsoever, that local state authorities may not patrol their state borders with foreign nations, and that local state authorities may not apprehend individuals who are offenders of federal immigration law, then those states indeed may do those things, inasmuch as they do them in a manner that does not surpass or contradict federal immigration law.


All citations from the Constitutions can be found here:




All citations from the Constitutions can be found here:

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