By Ed Quillen
Sometimes I feel derelict in my duties as a citizen. For instance, I avoided paying much attention to the recent arguments before the U.S. Supreme Court about the Affordable Care Act. Like everyone else, I have only so much attention, and I’d rather focus it on things I might be able to do something about. It’s not as though you can write to a Supreme Court justice the way you can write to your congressman (although our congressman has never paid any attention to anything I’ve written).
Further, often it’s easy to predict how the U.S. Supreme Court will rule: 5-4 in favor of Money. This goes back some years. Colorado used to have a law that banned paid petition circulators. It made sense to me; if the state has the power to forbid the buying and selling of votes, why not the power to forbid the buying and selling of petition signatures?
The U.S. Supreme Court, however, found this to be a violation of First Amendment rights. More recently, there was the Citizens United ruling, allowing for corporations to enjoy the full First Amendment rights of flesh-and-blood citizens. Whatever Money wants, Money gets from this Supreme Court.
Now to the challenge of Arizona’s “papers or else” anti-illegal immigrant law which was recently argued. It’s inspired some Colorado lawmakers to propose something similar.
Historically, it’s hard to make a case that immigration is a liberal or conservative issue. The Populists of the 1890s were a radical bunch; many were socialists who wanted government ownership of railroads and telegraph companies. Consider this from the national Populist platform of 1892 (the year that Colorado elected a Populist governor, Davis H. Waite):
“The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists. The urban workmen are denied the right to organize for self-protection, imported pauperized labor beats down their wages, a hireling standing army, unrecognized by our laws, is established to shoot them down … The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of these, in turn, despise the Republic and endanger liberty.”
Doesn’t this make you proud to see how much America has progressed in the past 120 years? And note that the Populists, the party that was supposed to be looking out for the little guy, saw “imported pauperized labor” as a tool to keep wages down. So conservatives of that era were all for immigration; America really didn’t start restricting immigration until the early 20th century when the conservative ruling WASPs started to feel threatened by a flood of Roman Catholic immigrants from southern Europe. In other words, it’s an issue that defies easy categorization.
The issue of immigration raises some constitutional questions about state vs. federal authority, and the U.S. Constitution reserves certain governmental powers to the federal government while leaving the states free to exercise others.
Two provisions are relevant. Article I, Section 8, provides that the U.S. Congress “shall have Power … to establish a uniform Rule of Naturalization.” That means that only the federal government grants citizenship to immigrants. Wyoming and New Mexico can’t have their own laws for becoming an American citizen.
The other provision is in Article I, Section 9: “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 …”
The wording is complex because our Founding Fathers did not want to use clear words like “slave” and “slavery.” But the idea at the time was to allow states like Virginia and South Carolina to import slaves from Africa until 1808, at which time Congress could outlaw the trans-Atlantic slave trade – which it did as quickly as possible, on Jan. 1, 1808.
However, it also means that after 1808, the U.S. Congress had authority over immigration from other countries.
Federal policy toward resident immigrants was a contention almost from the start. John Adams was the second President, serving from 1797 to 1801. War with France, then undergoing its revolution, was a real possibility.
Adams and his supporters – the majority Federalist Party in Congress – worried about the loyalty of French immigrants in the United States. They passed the Alien Acts of 1798.
One, repealed in 1802, raised the residency period for naturalized citizens to 14 years. Another, still in effect, empowered the President to arrest and deport resident aliens if their home countries were at war with the United States. The third, which expired in 1800, allowed the President to deport any resident alien deemed “dangerous to the peace and safety of the United States.”
Back then, the runner-up in the Electoral College became vice-president. That was Thomas Jefferson, who was Adams’s leading political antagonist. Jefferson arranged for the Kentucky legislature to pass a resolution that he had secretly written.
You could call Jefferson the original “tenther.” The 10th Amendment provides that “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.”
Since there was no specific constitutional authority giving the federal government power over resident aliens, Jefferson argued, then under the 10th Amendment, it was a state matter. Thus, the law “which assumes power over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.” In other words, Kentucky resolved to nullify the federal law.
Two of the Alien Laws soon expired, so the issue was never tested. And even though Jefferson, who became President in 1801, feared that the federal government lacked the constitutional authority to make the 1803 Louisiana Purchase, he went ahead anyway. So even if he started out a Tenther, he didn’t stay that way.
Thus, it became settled that states don’t control foreign immigration or naturalization. But what about internal migration from state to state?
That became an issue during the Great Depression. In 1936, Colorado Gov. Edwin C. “Big Ed” Johnson declared martial law along the state’s southern border with Oklahoma and New Mexico. National guardsmen set up check stations to turn back “paupers and aliens.” Thus, people lacking a few dollars in their pocket were turned back.
The soldiers even stopped a Santa Fe freight train coming down Raton Pass and made all the hobos walk back to Raton, N.M. They dispatched airplanes to look for increased traffic at other borders, just in case anyone was sneaking around the blockade.
Johnson was roundly criticized as other states threatened to boycott Colorado products. After just 11 days, he called back the Guard and stopped trying to control his state’s borders.
California was a different story. As the novel The Grapes of Wrath pointed out, migrating poor folks were not welcome to the Golden State. In 1933, California passed a law making it a misdemeanor to bring in, or assist in bringing in, “any indigent person who is not a resident of the State, knowing him to be an indigent person.”
A lay preacher named Fred Edwards resided in Marysville, Calif. Late in 1939, he drove to Spur, Texas, and brought back his wife’s brother, Frank Duncan. The brother-in-law was known to Edwards as “an indigent person.” After Duncan applied for relief in California, Edwards was convicted of importing a pauper and sentenced to six months in jail.
The sentence was stayed while he appealed. The state court upheld the conviction as a legitimate exercise of the state’s general police power, but the U.S. Supreme Court overturned it in 1941.
While the court recognized that “the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance,” it observed that a state cannot wall itself off from the problems of the nation as a whole.
Mainly, though, the U.S. Constitution grants Congress the power “To regulate Commerce … among the several States,” and the court held that this effort to regulate the movement of people from state to state was “an unconstitutional barrier to interstate commerce.”
Add all this up, and you can see how immigration has become strictly a federal responsibility. States (and, thus, their political subdivisions like towns and counties) have no authority to determine who is allowed to cross their borders. They cannot determine who can become a citizen, and they cannot determine who is allowed to enter the United States. The federal government has those powers, but the states do not.
Or so the court has held in the past. And I think that’s what the court will hold this time, since immigration tends to keep wages low, and that’s something that Big Money favors.
Ed Quillen has migrated from Weld County to Chaffee County, via Boulder, Grand and Summit counties, in a career of Colorado journalism.
