[Radar]

The Alien Act of 1798 does not prohibit entry into the U.S. by anyone, and hence does not involve any alleged Congressional power over immigration. It thus does not serve as a counterexample to the thesis that early Congresses passed no laws respecting immigration. The earliest such law we have found was in 1862, leaving a 73 year period during which the Founders and their successors gave no legislative sign that they believed the Constitution delegated to Congress the power to restrict immigration.

A glance at Madison's and Jefferson's Virginia and Kentucky Resolutions, quoted in Comment 135 above, will reveal that one reason opponents of the Alien and Sedition Acts believed them to be unconstitutional was that they allowed deportation for being labeled "dangerous" by the government, without a trial and the full panoply of rights guaranteed by the Bill of Rights.

But how can Madison and Jefferson have thought that the bill of rights applied to aliens? Because it does, according to the original understanding. Madison drafted the Bill of Rights, and he was careful to use the word "person", and not "citizen," throughout.

But is this line of reasoning vulnerable to the following reductio ad absurdum? Our analysis of the Alien Act logically entails the conclusion that INS deportations do not constitute restrictions on immigration. If such a conclusion would be absurd, then our analysis of the Alien Act must be false. However, the pertinent claim is a non-sequitur. In other words, it is not true that our analysis of the Alien Act logically entails the conclusion that INS deportations do not constitute restrictions on immigration. A simple exposition of the terms in question will reveal why this is so.

The Immigration and Naturalization Service may deport for at least two reasons: offenses committed by aliens after immigration has occurred, and illegal immigration. Only one of these powers involves restrictions on immigration. Immigration is the act of entering a new country with the intent of taking up permanent residence. The act of immigration is complete when the act of entry has been completed (as long as the requisite intent has accompanied the entry). Deportation for acts committed after entry does not restrict immigration, since it does not prevent the entry which is the essence of the act of immigration. Think of the difference between making a deposit and a withdrawal, in an ordinary bank account. A law which might prohibit an unauthorized withdrawal could be drafted without any reference to or restrictions upon the making of deposits.

In other words, some INS deportations are part of the Federal scheme to restrict immigration, and some are not. An example of the former would be a re- entry by a previously deported individual. An example of the latter would be a deportation of an alien for a drug conviction.

The Alien Act contained no terms by which entry was prohibited. It simply permitted the Feds to deport aliens which were determined to be "dangerous." Thus, the Alien Act attempted to confer upon the Feds powers which were similar to the modern INS power to deport for offenses committed by aliens after entry. Neither power involves the power to restrict immigration.

Since INS deportations fall into two classes, one involving power to restrict immigration, and one not involving that power, it does not logically follow that my analysis of the Alien Act logically entails the conclusion that all INS deportations do not constitute restrictions on immigration. To put it another way, while our analysis of the Alien Act does logically entail the conclusion that some INS deportations do not constitute restrictions on immigration, the same is not true with respect to all INS deportations. Yet this was the premise of the reductio ad absurdum. The attempt at a reductio has failed.

(To be continued)