THE IMAGINARY IMMIGRATION CLAUSE.

• Author: Bowie, Nikolas

Table of Contents Introduction I. The Immigration Clause Before 1876 A. The Political Context of Congress's First Immigration Law. B. The Federalist Defense of Congress's Power to Deport 1. The War Clauses 2. Other Clauses 3. Structural Arguments C. The Democratic-Republican Opposition to Congress's Power to Deport 1. The War Clauses 2. Other Clauses 3. structural Arguments D. Aftermath of the Alien Friends Act II. The Immigration Clause After 1876 A. The State Police Power Versus the Federal Commerce Clause 1. Chief Justice Marshall and the Federal Commerce Clause 2. Justice Field in California 3. Congress Exercises the Commerce Clause to Exclude B. The Commerce Clause Versus the Treaty Clause C. The Chinese Exclusion Case 1. The Chinese Exclusion Act 2. The Supreme Court's Opinion D. The Immediate Effect of the Chinese Exclusion Case 1. The Commerce Clause 2. The Necessary and Proper Clause E. The Long-Term Effect of the Chinese Exclusion Case III. The Modern Legacy of the Chinese Exclusion Case A. The Inconsistency Between the Regulation of Immigrants and Citizens 1. Diverging Doctrinal Paths 2. Persistent Inconsistencies B. The Missing Explanation for the Existing Regime 1. The Relationship Between Foreign Affairs and Immigration 2. Assessing Congress's Power IV. Toward a Legislative Constitutionalism A. Legislative Constitutionalism Modeled After 1798 B. Judicial Supremacy and Counter-Majoritarian Politics Conclusion Introduction

The United States is a nation of immigrants whose Constitution, ironically, doesn't mention immigration. (1) The document has a Commerce Clause, a Taxing Clause, and even a Post Office Clause, but nothing like an Immigration Clause. (2) To be sure, the authors of the Constitution anticipated that many new people would soon arrive in the country. They allowed Congress to tax or ban the importation of enslaved people and to establish rules for how new residents could become naturalized citizens. (3) But while the Constitution gives the federal government many powers, it doesn't give the government any specific power to regulate immigrants. (4)

This constitutional omission has inspired many legal controversies since 1789. Yet Supreme Court opinions over the past century have dismissed the omission as little more than a drafting error. "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," the Court wrote in 2012. (5) The Court has considered this power so obvious, so "sovereign," that surely the authors of the Constitution had no need to list it among Congress's powers to tax or to naturalize people. (6) In fact, the Court has declared that "'[o]ver no conceivable subject is the legislative power of Congress more complete.' Thus, 'in the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" (7) With this explicit blessing, a federal government that lacks judicial approval to exercise "[a]ny police power to regulate individuals as such" (8) has exercised what might be termed a secret police power over immigrants. The government has given border agents unreviewable discretion to exclude long-term residents returning home from abroad; allowed immigration agents to raid schools and courthouses to arrest children without warrants; required employers and public officials to deny immigrants the right to work, to vote, or to collect the benefits paid for by their income taxes; and permitted group trials to summarily separate immigrants from their families. (9)

The existence of this federal power over immigrants hasn't always been so "undoubted." When Congress passed its first immigration law in 1798, James Madison spoke for many of the Constitution's authors when he accused the legislature of "exercis[ing] a power no where delegated to the federal government." (10) The law, one of the Alien and Sedition Acts, authorized the president to deport any "alien" suspected of being dangerous to national security. (11) Madison and other critics described deportation as "among the severest of punishments," denouncing the idea that the Constitution silently gave Congress the power to deport immigrants. (12) "The Constitution gives to Congress no power over aliens, except that of naturalization," they added, (13) describing naturalization as a power that "neither authorized Congress to prohibit the migration of foreigners to any state, nor to banish them when admitted. It was a power which at most could only authorize Congress to give or withhold the right of citizenship." (14) Madison was joined by a "mighty wave of public opinion" that sank the Alien and Sedition Acts and swept their authors out of Congress. (15) For the next century, many politicians and historians would recall the deportation law as "unquestionably unconstitutional." (16) Congress would not attempt another immigration restriction until 1875. (17)

This Article tells the story of how, from this inauspicious beginning, Congress's power over immigration grew into its modern, undoubted form. Part I describes how for over a century after the perceived excesses of 1798, when members of Congress debated immigration laws, most members conceded that Congress was limited to tasks enumerated in the Constitution. (18) These included the power to declare war, make treaties, naturalize citizens, protect civil rights, and, most importantly, to "regulate Commerce with foreign Nations" and make "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." (19) Part II follows Congress as it resumed regulating immigration in the nineteenth century after its members had concluded that the power to regulate "Commerce" included the power to regulate passengers on incoming ships. (20) The Supreme Court ratified this conclusion in 1884, calling the first federal immigration restrictions "the mere incident of the regulation of commerce--of that branch of foreign commerce which is involved in immigration." (21)

The identification of immigrant passengers with foreign commerce proved to be a capacious source of regulatory power. When the Supreme Court first interpreted the Commerce Clause in 1824's Gibbons v. Ogden, Chief Justice Marshall wrote that it had "always been understood, [that] the sovereignty of Congress, though limited to specified objects, is plenary as to those objects." (22) By "limited," Marshall meant that Congress's regulatory authority extended only to the powers conferred by the Constitution. By "plenary," Marshall meant that if a subject involved commerce across state or national boundaries, then Congress's power over that subject "acknowledges no limitations, other than are prescribed in the constitution." (23) Marshall conceded that Congress might abuse its "plenary" authority to regulate commerce, but observed that "[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, ... the sole restraints on which [the people] have relied, to secure them from its abuse." (24) In other words, Marshall argued that voters participating in the political process--not the federal judiciary--should prevent undisciplined regulations of commerce.

In the decades after Congress and the Supreme Court extended this "plenary" regulatory power to the subject of immigration, the Court repeated Marshall's observation that electoral politics should be the only restraint on Congress's discretion. (25) This restraint proved unbridled in practice, however, as domestic white voters increasingly urged Congress to exclude immigrants who had no countervailing influence at the polls. (26) Nevertheless, the Court maintained that "the authority of Congress over foreign commerce and its right to control the coming of aliens into the United States" was a "complete" and "plenary power." (27) Most notably, in the Chinese Exclusion Case of 1889, the Court upheld Congress's power to exclude a Chinese immigrant despite preexisting treaties and statutes that promised to admit immigrants in his situation. (28) Quoting a different Marshall opinion, the Court described Congress's powers to make treaties and regulate foreign commerce as "sovereign powers, restricted in their exercise only by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations." (29) Because the power to exclude foreigners was "an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution," the Court held that the powers could not be "granted away or restrained on behalf of any one," much less a Chinese immigrant. (30) Instead, "the last expression of the sovereign will must control." (31)

At the time it was decided, the Chinese Exclusion Case was regarded as a relatively unimportant decision. From the perspective of the justice who authored the opinion, (32) the readers who first reported on it, (33) and the judges who first cited it, (34) the decision did little more than hold that no statute or treaty could prevent Congress from exercising its enumerated powers. The Court's use of the term "sovereignty" was no different from Marshall's use of the same language to describe the Commerce Clause and other enumerated powers. Decisions in the decades that followed the Chinese Exclusion Case continued to locate Congress's power to regulate immigration in enumerated powers like the Commerce Clause. (35)

In the early twentieth century, however, as the historical context surrounding the 1889 decision was forgotten, the Supreme Court began to interpret the Chinese Exclusion Case differently: as a turning point in the history of Congress's immigration power. Taking the "incident of sovereignty" language out of context, the Court...