As central as immigration has been to the development and identity of the United States as a nation, immigration has long challenged the national government to regulate flows, ensure security, economic demands, and manage claims-making. Immigration has also long exposed rifts within the federal system, where the Court’s consistent endorsement of national supremacy in matters relating to the entry and exit of foreigners often conflicts with the regional and local desire for greater flexibility from national policy. This section identifies the jurisdictional conflicts that evolved into a legal doctrine of national supremacy at cost to state power. The goal is to identify the historical shift in the balance of regulatory powers to the national government that occurred in the Supreme Court, and to outline the constraints within which states continue to operate. The analysis provides a backdrop that helps explain why current jurisdictional clashes instigated by states are significant focusing events more so for their symbolic stance against the national government than as actions of state sovereignty.
States, Immigration and Consolidation of a National Regime
We usually characterize the history of American federalism as following a path that moves from state supremacy at the ratification of the Constitution, to co-governance within well-delineated spheres during the era of “dual-federalism”, to the present system in which the national government is supreme and states, while retaining authority, operate with little autonomy from the federal government. Accordingly, states once designed their own immigration policies, and the shift towards national supremacy was gradual but relatively unabated once begun. The demands of immigration regulation required early development of an expansive national administrative and regulatory enforcement apparatus. Delineation of who was and was not admissible meant early articulation of a nation-centric citizenship [42
]. Moreover, while state immigration activism has been a feature of this policy area since the nation’s inception [44
], once the Court was asked to respond to possible jurisdictional overreach, it has acted decisively and, for over a century, consistently in favor of the federal government’s exclusive right to design, develop and enforce such policies3
At the nation’s founding, states were in charge of immigration regulation and several took steps to bar undesirable foreigners. State laws and some state constitutions defined classes of excludable immigrants such as “convicts and paupers”, the “diseased”, slaves and free blacks whose importation and migration were controlled in accordance with the status of slaveholding and free [44
]. In the absence of centralized immigration administration, port cities processed newcomers, developed immigrant registries and provided health inspections. State and municipal officials designed revenue-raising schemes to cover the putative costs of running and maintaining ports. As insurance against admission of paupers, criminals, “idiots,” prostitutes, and the like, state officials required bonds from ship owners and/or the collection of head taxes.
Immigrant exclusion, however, was not the only state concern. The following passage from John Higham’s Strangers in the Land
(1969) shows states competing to lure immigrants to their lands:
The demand for immigrants was most widespread and intense outside the densely populated states of the Northeast; in the West and South, virtually every state appointed agents or boards of immigration to lure new settlers from overseas. Michigan began the practice in 1845. By the end of the Civil War the northwestern states were competing with each other for Europeans to people their vacant lands and develop their economies. The South joined in, hoping to divert part of the current in its direction in order to restore shattered commonwealths and replace emancipated Negroes. In the 1860’s and 1870’s, at least twenty-five out of thirty-eight states took official action to promote immigration. South Carolina, in its desperation, added the inducement of a five-year tax exemption on all real estate bought by immigrants.
These state-led initiatives, though, occurred alongside ascendance of the national government and the centralization of policies of exclusion, administration, and revenue collection.
The decades immediately following the ratification of the Constitution were ones of robust state governance and limited national government. The Constitution’s framers were unclear in assigning responsibilities across the federal system, and as a result, immigration was only one matter that prompted intergovernmental clashes [16
]. Early jurisdictional conflicts over immigration involved questions of regulation of commerce, and were arguably as significant to the ascendance of the national government as more commonly known early cases like Gibbons v. Ogden
or McCulloch v. Maryland
. In The Passenger Cases
] a fractious court determined that portions of New York and Massachusetts state laws applying a per-head tax on foreign ship masters were unconstitutional because their implementation interfered with congressional power granted under the Commerce Clause. What is less clear from the three different opinions issued in this case was whether immigration of free people amounted to “commerce”. Also unsettled was whether, in the complete absence of congressional law on a matter, states must still defer to federal power, or whether states could articulate their interests until
Congress took steps to legislate in that area.
It wasn’t until decisions in Henderson v. City of New York
(1875) and Chy Lung v. Freeman
(1875), that the Court elaborated on the constitutional bases of federal exclusivity and defined the interests served in maintaining that exclusivity of immigration control. At issue in Henderson
were similar statutes in Louisiana and New York that required collection and payment of a head tax from foreign ships prior to disembarking. In outlining the decision against state-mandated ship taxes, Justice Samuel Miller stated:
Though it be conceded that there is a class of legislation which may affect commerce, both with foreign nations and between the states, in regard to which the laws of the states may be valid in the absence of action under the authority of Congress on the same subjects, this can have no reference to matters which are in their nature national or which admit of a uniform system or plan of regulation.
In short, even in the absence of specific congressional laws, state activities that might impinge on Congress’s constitutional authority over commerce and intergovernmental relations superseded state interests.
involved twenty two Chinese women imprisoned in San Francisco when the ship’s captain refused to pay bonds for them. Here, the California statute under scrutiny targeted potentially burdensome immigrants for bonds instead of relying on a universally applied head tax (as was the case in Henderson
). California’s elaborate regulations endowed its Commissioner of Immigration with the power to board a ship, unilaterally determine the excludability of individual immigrants, demand indemnity for those he deemed might become public charges, and walk away with a percentage of the fees collected. In this instance, the commissioner determined that the detainees were “lewd and debauched women”. The Court was united in its decision against California, which Justice Samuel Miller criticized as having produced
…a statute…framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind.
In his opinion, Miller further described California’s overreach as potentially detrimental to U.S. foreign relations, and therefore out of line with constitutional powers of Congress and the Executive4
The post-Reconstruction incarnation of the United States as a unified entity with a territorially-defined people, would, in turn, find its expression in a host of new immigration regulations designed to admit immigrants in line with evolving and ascriptive citizen ideals based on race, class, and gender [49
]. Congress soon erected its own public charge laws, and criteria for inadmissible immigrants replicated those originally articulated at the state level. Regional anti-Chinese fervor found a national stage when California’s sizable delegation in Congress eventually influenced the passage of the 1882 Chinese Exclusion Act ([52
], pp. 105–7). A national immigration monitoring system required the deployment of a national administrative and enforcement regime. The growing power and centralization of the national government in this area, in turn, benefitted from the support of successive court decisions that further buttressed national jurisdictional claims in place of those of the states.
In the Chinese Exclusion Cases
the Court established the plenary power doctrine, ruling that congressional authority is virtually absolute in defining which standards and rules applied for admission, deportation or removal of [53
]. The decision strengthened earlier rulings citing the constitutional sources of national supremacy seen in Henderson
and Chy Lung
. It privileged Congress and the Executive in the design and execution of immigration laws with virtually no opening for judicial review. Eventually, quantitative restrictions 1920s quota systems would expand the national apparatus required to regulate immigrant admissions.
By contrast, Congress never articulated a uniform immigrant policy.
The years 1910–1924 (also years of highest immigration levels), did, however, provide the context for an Americanization movement. Leaders at all levels of government, social and educational reformers all championed programs to encourage cultural and linguistic assimilation. Although federal funds existed for agencies and organizations that promoted middle class Anglo conformity and conservative nationalism, there was no unifying national policy, sole national agency, or even national official in charge of the effort. Congress made Americanization official concurrent with the passage of the 1924 National Quotas Act. Still, even in the field of education where, as vehicles of assimilation, schools were expected to teach English and civic values, program delivery was left to state and local agencies and organizations with programs already in place [55
Instead, the states shaped possible paths for immigrant integration within the national administration of entry and removal. With the consolidation of power and relative ascendance of the American nation, state interest in immigration governance remained, though the role of states was now limited. A solid doctrine of national supremacy was in place by the time Congress dismantled National Origins first in 1952, and then again with the ground-breaking 1965 Immigration and Nationality Act, though states still provided for the day-to-day welfare of all those residing in their domains. Jurisdictional fights occurred when Congress had not occupied the field5
. The absence of national direction was also the source of dispute in DeCanas v. Bica
]. In this case, a California state law prohibited the knowing employment of unauthorized immigrants at a time when Congress did not. The case arrived in the Supreme Court after the California Appeals Court deemed the state law unconstitutional on preemption grounds. The Supreme Court reversed that ruling, reasoning that just because a state law indirectly or directly affected immigrants did not mean such a law implied state regulation of immigration, and that states’ general right to govern the employment relationship extended to unauthorized immigrants. Thus, the ruling upheld the state law, but it also specified the rules of preemption that would, in turn, inform future state immigration and immigrant laws.
However, as state electorates fought national ascendancy in civil rights protections (the state’s rights movement), redistributive social policies (the tax revolts of the 1970s and early 1980s), a new front would emerge among states that used policy to divide the deserving population of taxpayers and citizens from poor and minority residents believed to drain public resources [58
]. Immigrant populations—once targeted by state policies for depressing wages and work conditions, criminality, and non-assimilability, increasingly became targets of state laws and voter initiatives that pursue redress for unauthorized immigrants as fiscal burdens. Compared to their position on state efforts to regulated entry and exit, the courts were less consistent on public benefits restrictions: conflicts over the permissibility of state constriction of benefits for immigrants were sometimes ruled unconstitutional [57
]. Decisions turned on whether such state laws fell into the category of immigration regulation, or whether they involved violations of the equal protection clause. But, some decisions were critical to protecting the states’ authority, particularly in the area of employment [57
] when it was deemed clearer which state interests these laws served, and that implementation did not infringe upon national powers.
State immigration policies and the jurisdictional conflicts ignited by such measures provide insights into whether states are expected to operate in tandem with the national government, maintain spheres of sovereignty within a structure determined by the national government, or have space to operate independently. Even this brief overview however, illustrates the problem with assuming a clear distinction exists between immigration policy and immigrant policy; the Court itself has not ruled in a manner that confirms such boundaries [62
]. Underlying all of these battles is a more fundamental divide over the national responsibility to ensure security, to meet economic demands, and to manage claims-making—all of which have been complicated by co-existing trends: the devolution of social policy delivery from the national government to the states and the integration of law enforcement agencies for the purposes of national security and immigration enforcement. Thus while state-federal clashes over immigration are a longstanding feature of this policy area, more recent state efforts to control, expel or accommodate their immigrant populations must be considered in light of these significant changes to national policy designs that positioned states as arbiters of claims-making, and how, in turn, states have emerged as the sites of anti-Washington revolt.