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Immigration, the Constitution, and Liberty


Immigration is one of those intractable wedge issues. It is, for the most part, a problem created by government meddling — and therefore any “solution” implemented by the government is more likely to aggravate the situation than improve it.

First, let me state that I believe the federal government to have no authority over immigration except to create uniform laws of naturalization. I readily concede that this view is far outside the political mainstream, but it is consistent with the text and original intent of the Constitution.

Article 1, section 8, clause 4 of the United States Constitution empowers Congress to regulate naturalization, which is the process of granting citizenship to a foreign-born person. But the clause is silent on immigration, which relates to residency, not citizenship.

Today “immigration” and “naturalization” are now seen as being closely related, but the two words had separate and distinct meanings when the Constitution was ratified. In the 18th century, the definition of naturalization was something like “the act of investing aliens with the privileges of native subjects,” while immigration meant simply moving from one place to another.

And we shouldn’t forget that among the many issues provoking America’s secession from the British Empire was the attempt by King George III to restrict westward immigration. Americans in the 18th century wanted more land and the freedom to move about, and they believed this particular pursuit of happiness was being stymied by a remote and arrogant central government. Sound familiar?

Given that the Constitution only grants the federal government specific and enumerated powers, and conspicuously lacking among those powers is the authority to regulate immigration, it stands to reason that such powers are retained by the sovereign states. This was supposedly clarified by the Tenth Amendment, which Thomas Jefferson considered to be “the foundation of the Constitution.” That amendment reads,

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.

And as Jefferson explained in the Kentucky Resolution of 1798,

Alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.

So a proper interpretation of the Constitution puts the locus of the immigration debate at the state level. Now, how the states decide to resolve disputes relating to immigration is another question entirely, but Washington should really have no say in the matter. Nevertheless, the federal government has sought to regulate immigration since 1890, and the passage of time has legitimized this usurpation in the minds of most Americans.

The U.S. Supreme Court, citing the supremacy clause of the Constitution, has held that

the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, “the act of Congress or treaty is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.” And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation … states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.

But the supremacy clause only applies to those powers pursuant to the Constitution. That is, it applies only to Congress’s enumerated powers and should not be construed as a grant of general power, which would negate the very purpose of writing a constitution. And, as pointed out above, Congress was given authority to regulate naturalization, not immigration.

Furthermore, the Constitution did not establish a nation-state. What it did establish was a confederation of sovereign states that had agreed to delegate some of their powers to a general government, primarily for purposes of mutual defense and the creation of a common market. The consolidation of the United States of America into a nation-state in the 19th century had more to do with the ambitions of northern politicians than with any established constitutional or legal process. That indeed was the whole point of the great unpleasantness commonly referred to as the American Civil War.

Those demanding that the federal government “secure the borders” are usually conservative types who claim to favor a strict constructionist view of the Constitution. Yet by advocating a federal crackdown on illegal immigration, they are supporting policies requiring a very broad interpretation of federal power. When it comes to immigration, they spurn Thomas Jefferson and embrace Alexander Hamilton.

They are also supporting policies that are turning the country into a veritable police state. For instance, take the recent immigration-reform bill co-sponsored by Senators John McCain and Charles Schumer. The bipartisan plan calls for a massive increase in drones flying over U.S. territory, spying on U.S. citizens along the border — and presumably within the 100-mile “border zone” over which the Department of Homeland Security (DHS) asserts jurisdiction. These areas have been called “Constitution-free zones” because border-patrol agents operating within them are exempt from the Fourth Amendment’s prohibition of unreasonable searches and seizures. I might add that well over 50 percent of the U.S. population lives within a “border zone,” which the DHS defines by proximity to any national barrier, political or physical, including bodies of water.

How long will it be before the drones used to police the borders are conscripted into other law-enforcement functions such as drug interdiction? Will these drones be armed, and if so, will those operating them be given the authority to fire on suspected drug smugglers? After all, the War on Drugs is a war, and you cannot afford to observe the niceties of due process in wartime, or so the argument goes.

The McCain-Schumer plan also calls for the creation of what would be in effect a national ID card. Dubbed E-Verify, the program would likely require Americans to have in their possession a biometric card verifying their employment status. (You gotta keep employers from hiring illegals, lest the terrorists win.) The program would be administered by DHS, which would maintain a comprehensive database on all Americans, and those operating it would decide whether one would be permitted to work. Comprehensive database? Permitted to work? So much for the right to privacy and the pursuit of happiness.

What exactly is a stake in illegal immigration that justifies this Orwellian nightmare?

Most if not all of the conventional arguments against open immigration are a based on misapprehensions and economic fallacies. There is always the fear of foreigners and competition, but such nativist attitudes are ironic for a nation that was created by immigrants and expanded so rapidly by gobbling up adjacent foreign territories.

This is not to suggest that there are no challenges or inconveniences created by immigration, but most of the recent problems associated with it are consequences of various federal government policies. For instance, the easy-money policies of the Federal Reserve created an artificial demand for foreign labor, while federal welfare schemes like unemployment insurance and food stamps made many jobs appear unattractive to native-born Americans. Anyway, the economic contraction that began in earnest in 2008 has largely solved this “problem,” as many immigrants have now returned home for lack of gainful employment here in the United States.

Now, some claim that illegal immigration puts an unsustainable burden on the country’s social-safety net and therefore government must do something to curtail it. To the extent that immigrants are able to access various welfare programs, that is a problem, but it is one that has been greatly exaggerated. Since 1996, illegal immigrants have been prohibited from receiving food stamps, housing assistance, Medicaid, and Medicare-funded hospitalization. Moreover, illegal immigrants contribute more in taxes than they take away in benefits. All those illegals working under fraudulent social-security cards may be breaking the law, but they are also paying the taxes that support that redistributive program, the beneficiaries of which are overwhelmingly native-born, white, middle-class Americans.

Now, illegals do still use government-provided emergency medical care and public schools. But the solution here is to privatize emergency medical care and get rid of the public schools. Charity in a free society should be voluntary, and the government has no business educating children, be they native-born or not.

I am reminded here of something the Old Rightist and libertarian thinker Frank Chodorov said when questioned on how to deal with the threat of communists infiltrating the U.S. government. “How to get rid of the communists in the government? Easy. Just abolish the jobs.”

A similar solution is available to the problem of illegal immigrants accessing taxpayer-financed welfare programs. Just abolish the programs.

Many argue that government control of immigration is vital to national security. The borders need to be “secured,” they say, to keep out terrorists and others who may be entering the country intending to do harm.

As far as the risk of terrorism is concerned, it would help matters a great deal if the U.S. government ceased stirring up enmities abroad by invading, occupying, and bombing other countries. And the fact that all of the alleged 9/11 terrorists were in the country legally should make us skeptical of the concept of tighter border security. After all, what’s the point of putting up with the indignities and inconveniences of tighter border security if the feds allow known terrorists into the country?

Furthermore, the argument for “securing” borders woefully underestimates the practical difficulties and possible effects of doing so. Such an ambitious enterprise would require closely screening millions of tourists, honest workers, and businesspeople. It would also require police-state tactics, as evidenced by the increasing militarization of the country’s borders. And as Ron Paul trenchantly pointed out during his 2012 presidential campaign,

Every time you think about this toughness on the border and ID cards and REAL IDs, think it’s a penalty against the American people too. I think this fence business is designed and may well be used against us and keep us in. In economic turmoil, the people want to leave with their capital and there’s capital controls and there’s people controls. Every time you think about the fence … think about the fences being used against us, keeping us in.

At the time, Paul was roundly criticized for these remarks. But I would suggest to Paul’s critics that they pay closer attention to current events before they dismiss the former congressman as being too alarmist.

The State Department has been accused of intentionally making its passport application process unreasonably burdensome. The IRS has asserted the authority to revoke the passports of Americans they claim have not paid all of their federal taxes. And there is a bill in the U.S. Senate that would impose financial penalties on any American who renounces his citizenship. It would appear the feds are intentionally making it more difficult for Americans to go abroad. Why?

Open immigration is the logical extension of free trade. By allowing people to move about freely and compete for jobs, we all benefit from the increased division of labor. As the saying goes, “more hands make for lighter work.” Unfortunately, this economic verity is often obscured by the intentional debasement of our currency, which leads many people to associate improved living standards with nominal wage gains rather than with increased production.

There are also those who are dismayed by the cultural challenges presented by open or mass immigration. But this is largely a demographic issue ill-suited for a political solution. Such problems are best left to the free market, where voluntary associations and commerce encourage peaceful coexistence and cultural assimilation.

The right to migrate is a natural right. Being able to move about to pursue opportunity or to escape tyranny is essential to liberty. The Founding Fathers appeared to understand this when they wrote the Constitution, yet, like many other rights, this one has been trampled during the country’s statist long march. Political borders may serve some practical purposes, such as delineating a particular government’s jurisdiction, but they should never be looked upon as sacred. Indeed, the ever-changing political maps of world history demonstrate there are few things less sacred than a nation’s borders.

I will close with an excerpt from Larken Rose’s manifesto, The Most Dangerous Superstition:

The belief that politicians own everything is demonstrated even more dramatically in the concept of immigration “laws.” The idea that a human being needs permission from politicians to set foot anywhere in an entire country — the notion that it can be a “crime” for someone to step across an invisible line between one authoritarian jurisdiction into another — implies that the entire country is the property of the ruling class. If a citizen is not allowed to hire an “illegal alien,” is not allowed to trade with him, is not even allowed to invite an “illegal” into his own home, then that individual citizen owns nothing, and the politicians own everything.

Well said.

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    Tim Kelly is a columnist and policy advisor at The Future of Freedom Foundation in Fairfax, Virginia, a correspondent for Radio America’s Special Investigator, and a political cartoonist.