U.S. and Texas officials are currently engaged in a fierce battle over immigration and border control. The most recent development in this ongoing dispute occurred on March 27, when the U.S. Court of Appeals for the Fifth Circuit intervened by preventing a Texas law from being implemented until its constitutionality is determined in upcoming hearings. The law in question criminalizes the act of unauthorized border crossing from Mexico into Texas. This contentious issue raises a crucial question: Who possesses the authority to regulate immigration in the United States?
Since the late 19th century, the federal government has asserted its authority in determining who can enter the United States. However, it is the local jurisdictions that wield significant influence over the lives of immigrants once they are in the country. These jurisdictions have the power to either provide support and implement immigrant-friendly policies or impose restrictions and surveillance measures that hinder the lives of immigrants.
Today, states like Texas are attempting to blur the lines between immigration policy, encroaching on the federal government’s authority to oversee the country’s borders and enforce immigration laws. This has significant consequences for both immigrants and U.S. foreign policy.
During the time before the Civil War and Reconstruction, Congress had very little involvement in the regulation of immigration, including admission, exclusion, or removal of immigrants. The Southern states, driven by their desire to protect and maintain slavery, were vehemently opposed to a strong federal government that could control the movement of people into the United States or between states. It was only after the abolition of slavery that the era of national immigration control began.
During Reconstruction, the focus was primarily on addressing the aftermath of slavery. However, this period also had a significant impact on immigrants from all backgrounds. The Fourteenth Amendment, for instance, introduced the concept of national citizenship for the first time. It established that being born on U.S. soil or going through the naturalization process were the two criteria for obtaining citizenship. This amendment played a crucial role in assimilating immigrants and their children, regardless of their background or status. Additionally, it granted the rights of equal protection and due process to all “persons,” not just citizens. This included Asian immigrants, who were still unable to naturalize. Interestingly, the expanded federal state created by Reconstruction also allowed for the restriction of immigration in ways that individual states could not.
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In 1875, the Supreme Court made two unanimous rulings emphasizing that the authority to control immigrant admissions to the United States lies solely with the federal government. The Court stressed that granting a single state the power to decide on entry and removal could potentially lead to detrimental conflicts with other nations. Therefore, it was clear that immigration was a crucial issue related to national security.
In light of these rulings, leaders and lawmakers in the Northeast and the West advocated for fresh federal laws. Taking inspiration from state legislation before the Civil War, the Immigration Act of 1882 levied taxes on all foreign travelers and denied entry to those who were likely to rely on public aid. Simultaneously, advocates against Chinese immigration lobbied Congress to limit the arrival of Chinese laborers, leading to the passing of the Chinese Exclusion Act in 1882.
In the case of Chae Chan Ping v. United States (1889), also known as the Chinese Exclusion Case, the Supreme Court upheld the decision to admit or exclude foreigners as deemed necessary by Congress and the executive branch, with minimal interference from the courts. Justice Stephen Field justified this ruling by stating that every independent nation has the jurisdiction over its own territory as a means to protect its independence from foreign aggression and encroachment. Interestingly, this perspective overlooked the fact that the United States actively encouraged the substantial immigration of Europeans, whose labor played a significant role in driving economic growth.
The concept laid the groundwork for a unified immigration system that has regulated entry into the United States for the past 135 years. Although Congress has adjusted the law to be more or less stringent at different points in time, maintaining federal control over immigration has remained constant, as opposed to leaving it to individual states.
However, this does not imply that states and localities have no role to play in immigration matters. Even today, cities and states have the power to influence the lives of immigrants once they have arrived. During periods of heated immigration debates and rising nativism, this often involves implementing restrictions on immigrants in an attempt to discourage them from entering the country.
During the 20th century, border states worked together with federal authorities to enforce exclusion and deportation measures. Immigrants faced various restrictions across the nation, including limited access to drivers’ licenses, public benefits, and education. Additionally, some states implemented employment verification requirements, penalties for leasing property to certain immigrants, and regulations that prohibited day laborers from gathering in public areas.
During the 2000s, as Congress faced a stalemate on immigration, conservative states took a more assertive approach in pushing the boundaries of what was legally feasible when it came to immigration restriction. In 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (SB1070). This law mandated that non-resident aliens aged 18 and above register and carry proof of their immigration status. It also criminalized the solicitation of work by day laborers, empowered state law enforcement officers to determine the immigration status of suspects, and allowed for warrantless arrests of individuals believed to be removable. The Arizona legislature, in passing SB1070, explicitly stated its intention to make attrition through enforcement the prevailing public policy for all state and local government agencies in Arizona. The various provisions of the act were designed to work in tandem, discouraging and deterring the unlawful entry and presence of aliens.
The Supreme Court declared most of the law unconstitutional, as it was seen as an infringement on federal authority over immigration. However, Justice Antonin Scalia dissented and sought to revive the historical tradition of state police power. Scalia pointed out that, despite the belief in an era of unrestricted immigration during the early years of the Republic, states had actually enacted numerous laws to restrict the entry of certain groups of immigrants. Scalia argued that as a sovereign state, Arizona possessed the inherent authority to exclude individuals from its territory. In his view, SB 1070 was not challenging federal immigration laws but rather aimed to enforce them more effectively.
Texas is challenging the basic premise of federal control over immigration by criminalizing the entry of undocumented immigrants into the state. This move seeks to usurp the federal government’s power to enforce U.S. immigration laws. If the courts allow this infringement, it could have devastating consequences for immigrants and Texans of color who may be profiled as immigrants.
If Texas’s law is allowed to remain in effect, it could potentially lead to foreign policy complications for the United States, potentially entangling it in international disputes. U.S. Solicitor General Elizabeth B. Prelogar recently referred to a precedent from 1875 to caution the Supreme Court about the potential consequences of other states following Texas’s lead. She highlighted that such a scenario could result in a fragmented approach that hampers the nation’s ability to present a unified stance in global affairs.
Mexico’s foreign ministry has issued a statement expressing concern over the Texas law and emphasizing the importance of maintaining bilateral efforts with the United States to ensure safe and orderly migration that respects human rights. President Andrés Manuel López Obrador has further declared that Mexico will not accept any migrants who are returned to the country under this law.
Throughout history, it is evident that the federal government has maintained authority over immigration law, and this has been crucial for various compelling reasons. Altering this control could lead to severe repercussions, impacting not only immigrants but also American foreign policy.
Kevin Kenny, an NYU history professor, is known for his extensive research on immigration. One of his notable works is “The Problem of Immigration in a Slaveholding Republic: Policing Mobility in the Nineteenth-Century United States,” published by Oxford University Press in 2023.
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