THE LEGISLATIVE HISTORY
Federal closing of borders is unconstitutional, according to the original meaning of the terms of the Constitution, because Congress has no power to close the borders against peaceful immigration. To illustrate the point that the early and original understanding of Congressional powers did not include that power, the earliest example of a congressional enactment assuming such power dates from 1862, a full 73 years after the Founding. So from the inception of the Republic, until the Civil War, Congress passed no law restricting immigration. This is strong evidence that it was originally understood that the Federal Government possessed no power to do so. Until the passage of an 1862 act to prohibit immigration of Chinese "Coolie" slave labor, Congress had passed only several acts to encourage (!) immigration. In the 38th through 43rd Congresses, dozens of bills were introduced to encourage (!) immigration. The index for the Statutes At Large from 1789 to 1845, reveals no entries for "immigration." From 1845 to 1875, the individual indices for each congress reveal no entries for "immigration" other than the1862 act mentioned above, and the 1875 Page Act, forbidding the immigration of slave labor from the Orient.
What can be learned from this legislative history? For the first 73 years of our nation's history, Congress passed no laws restricting immigration. For the first 73 years of this nation's existence, hostility towards immigration was a concept foreign to the Framers, as was the idea that the Constitution conferred upon the Feds the power to preclude peaceful immigration. In short, for the first 73 years of our nation's history, restrictions on Immigration were considered Un-American and unconstitutional.
It is sometimes asserted, incorrectly, that the Alien act and the Alien Enemies act, both of 1798, were, in fact, examples of a Congressional enactment exercising power over immigration. Such is not the case, however, because A) neither act contained any provision authorizing restrictions on immigration; and B) at the time of their passage, they were so widely recognized to be unconstitutional that they inspired the Revolution of 1800 that brought Jefferson to power. So, even assuming arguendo that the Alien Act and the Alien Enemies act assumed any power over immigration, the history of the widespread opposition to them, on the grounds that they were unconstitutional, serves rather to prove the point that the Founders did not, as a whole, believe that, under the Constitution, Congress was granted the power to restrict peaceful immigration.
Some have argued that the congress did pass a law restricting immigration, in the form of the Aliens Act of June 25, 1798 (1 Statutes-at-Large 570). However, the Aliens Act did not restrict the immigration of aliens. It merely authorized the deportation of aliens considered dangerous. Congress received many complaints from the States regarding the unconstitutionality of the act. The complaints included the argument that no provision of the Constitution authorized the deportation of Aliens. A committee of Congress filed a report, answering those objections. The committee argued that the Alien Act did not generally restrict immigration, and that there was a difference between a general restriction on immigration and the removal of dangerous aliens. 5th Congress, 3rd Session, Volume 1, pg.181-2. The distinction was important to Congress then, and it should be obvious to us now.
It is also important to note that, in the field of Constitutional history, it is very bad form to cite the Alien Act as an example of constitutional powers. Its passage was greeted with widespread disdain, as it was almost universally decried as unconstitutional, and it ignited a political firestorm that swept Jefferson into power. An American of 1800 would be shocked to hear anyone cite any of the Alien and Sedition Acts as precedent, for most Americans of that day considered those acts to be unconstitutional. The public outcry against the Alien and Sedition Acts was so great that they helped elect Thomas Jefferson to the presidency in 1800. Jefferson pardoned all those convicted under the Sedition Act, and Congress restored all fines paid with interest. The Alien Act itself expired after two years.
In addition to the Aliens Act of June 25, 1798 (1 Statutes-at- Large 570), the Alien Enemy Act of July 6, 1798 (1 Statutes-at-Large 577) gave the President the power to restrain or remove alien enemy males of fourteen years and upwards.
The full text of the Alien Enemy Act can be found at:
http://earlyamerica.com/earlyamerica...on/a-text.html
The pertinent text of the Alien Act is as follows:
"whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies . . ."
Please not that, while the Act permits the FedGov to deport aliens affiliated with enemy governments, it does not mention any restrictions on immigration, general or otherwise. The act simply did not restrict the immigration of aliens. It merely authorized the deportation of aliens considered enemies. Congress received many complaints from the States regarding the unconstitutionality of the Alien and Sedition Acts. The complaints included the argument that no provision of the Constitution authorized the deportation of Aliens. A committee of Congress filed a report, answering those objections. The committee argued that the Alien Act did not generally restrict immigration, and that there was a difference between a general restriction on immigration and the removal of aliens. 5th Congress, 3rd Session, Volume 1, pg.181-2. The distinction was important to Congress then, and it should be obvious now.
The fact that the act authorized deportation of certain aliens can mislead the careless reader into believing that the act touched upon immigration. Since immigration laws also today concern deportation, isn’t the reader warranted in concluding that they are substantially the same? No. Banking laws and tax laws both deal with money. Does that mean that all banking laws are tax laws? A law prohibiting immigration concerns aliens, and a law authorizing deportation of dangerous aliens also concern aliens; yet that does not mean that both laws involve Congressional power over immigration. The INS may deport for offenses committed by an alien after immigration, or it can deport for illegal entry. Only the latter involves the power to restrict immigration.
(To be continued)