Immigration and Alienage

• Author: Gerald P. LÓPez, Kenneth L. Karst
• Pages: 1328-1330

Page 1328

The ambivalence that characterizes today's national policies toward immigration had antecedents in the colonial era. Although the DECLARATION OF INDEPENDENCE complained that the king and Privy Council had tried "to prevent the population of these states," many of the colonies had resisted Roman Catholic immigration, and in 1776 some of them still resounded with expressions of nativist resentment against populations that were non-English. The nation is justly proud of its tradition as a refuge for the oppressed and persecuted. Yet American immigration policy, from colonial times to our own, has been dictated by the "native" majorities' perceptions of self-interest. The perceived need for settlers and workers hangs in precarious balance against the suspicions and hostilities that flow out of cultural differences. Congress decides how the balance shall be struck; in the field of immigration, constitutional law has placed few limits on governmental power.

For almost a century, Congress took little part in the regulation of immigration. Even the ALIEN AND SEDITION ACTS (1798), for all their spirit of partisan nativism, were not conceived as immigration restrictions. An early minimal state regulation of the immigration process survived challenge under the COMMERCE CLAUSE in MAYOR OF NEW YORK V. MILN (1837), but more severe state regulations were held invalid in the PASSENGER CASES (1849). Direct state limits on immigration were held unconstitutional in Henderson v. New York (1875), the same year in which Congress adopted the first direct national restriction, forbidding immigration by convicts and prostitutes.

By 1875, Congress's constitutional power to control immigration had come to be seen as one aspect of its power to regulate foreign commerce. Later, the Supreme Court articulated a more sweeping doctrine: the power of the national government to control FOREIGN AFFAIRS was inherent in the idea of nationhood and did not need explicit recognition in the Constitution. That doctrine eventually found its fullest expression in UNITED STATES V. CURTISS-WRIGHT EXPORT CORP. (1936), but it had surfaced half a century earlier in the context of immigration. In CHAE CHAN PING V. UNITED STATES (1889) the Court announced that if Congress "considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, ? its determination is conclusive upon the judiciary." Having cast itself in an acquiescent role, the Court in Nishimura Eiku v. United States (1892) justified nearly absolute congressional power over immigration as "inherent in SOVEREIGNTY." An exceedingly inscrutable image of a national community now formally protected Congress's immigration decisions from effective constitutional challenge.

The law upheld in the Chae Chan Ping decision was the CHINESE EXCLUSION ACT of 1882. In the years since 1850, some 300,000 Chinese had come to the Pacific Coast, most of them responding to active recruitment of labor for mines and...