The Federalist Blog

Yesterday the Third Circuit ruled against the City of Hazleton’s Illegal Immigration Relief Act Ordinance, which set out to fine landlords who rented to undocumented immigrants and would have penalized companies that employed them. Additionally, tenants would have had to show proof they were citizens or lawful residents, register with the city and pay for a rental permit in order to receive an occupancy permit.

Chief Judge Theodore McKee of the appeals court wrote in a 188-page decision:

Deciding which aliens may live in the United States has always been the prerogative of the federal government…To be meaningful, the federal government’s exclusive control over residence in this country must extend to any political subdivision. Again, it is not only Hazleton’s ordinance that we must consider. If Hazleton can regulate as it has here, then so could every other state or locality.

The error that needs pointing out is that there is absolutely no evidence the States surrendered to the Federal Government any authority over what aliens may come and reside within a State. The Constitution is absolutely silent on the subject, which can only mean the power over internal State immigration was withheld. This in return makes any assertion over the regulation internal immigration of aliens within a State as exclusively belonging to Congress highly suspect.

It won’t help to argue to make uniform rules of naturalization extends to matters of immigration because naturalization and immigration are two distinct activities with immigration dealing solely with migration of humans and not with uniform rules of acquiring citizenship. If immigration has always been a prerogative of Congress, why then was the power to make uniform rules of naturalization required under Section 8 of Article I and not immigration?

The recorded evidence is overwhelming the States retained and exercised full and complete control over the admittance of aliens within their limits long after the Constitution was adopted. It was the States and not Congress who established Immigration Bureau’s in order to establish internal immigration policies and regulations, and who sent commissioners to other countries for purposes of promoting immigration to their State. States and towns passed all sorts of laws in regulating or prohibiting aliens from residing within a State or town.

For example, an 1851 act of Massachusetts created a board of commissioners to regulate the introduction of aliens into that commonwealth. An 1885 act of Indiana was titled, “an act to prohibit the importation and migration of aliens, foreigners, and others under contract or agreement to perform labor within the State of Indiana.” The 39th Congress found no constitutional objection to States penalizing aliens through head taxes to prevent their introduction.

All the States eventually stopped promoting State immigration due to labor considerations. Citizens usually resented new immigrants after a period of time because they lead to lower wages and job competition.

Congress did begin by the late nineteenth century to restrict Chinese labors from entering the Union, but they never attempted to say who may come and reside within the States since that would been too great of an invasion of the sovereignty of the States. Only reason Congress begin to prohibit Chinese labor was because of an amended treaty with China concluded on November 17, 1880, that authorized Congress to prohibit the introduction of Chinese laborers.

Since the States had always regulated their own internal immigration, and because no power was ever delegated to Congress over the subject, nor was it ever prohibited to the States, leaves regulation of domestic immigration a reserved power belonging only to the individual States. Congress can no more determine what aliens may come and reside within a State any more than they could have regulated whether aliens may hold property within the States or not.

Related: The US Constitution Only Delegates the Power Over Immigration or Asylum to the States