I recently finished the first month of classes for my course on immigration law at Hofstra Law School. I am always intrigued by the reaction I get from students on what they learn. Most of them are not immigrants and only a few have direct experiences with our immigration laws. So, most of what they know comes from political discussions of our laws. I want to spend a few moments discussing what the students said they found surprising over the first few classes. I’ll elaborate on this in future articles.
First, most did not realize that the Constitution makes no mention of immigration as an area of law that Congress may legislate on. They come to the first class knowing that Congress has the power to create a “uniform rule for naturalization” and assume that means that Congress was empowered to control immigration, however, the immigration power and naturalization power are distinct and separate.
Second, they are surprised to learn that there were virtually no immigration laws before the 1880s. For roughly 100 years, immigration was almost entirely unregulated. Whoever wanted to come here just came. If we look to the Founding Fathers, the Framers of the Constitution, and the Federalist generation, it is arguable that the people who started our country did not think that anyone should be excluded from coming here.
Given all the uproar about Arizona and Alabama passing anti-immigrant laws, many of the students did not realize that the Supreme Court had prohibited most state immigration laws by the end of the 1800s. When the Supreme Court decided that the control of immigration is an exclusively Federal power, it essentially barred the states from intervening. Jan Brewer’s menu of horror for immigrants was a Constitutional dead letter.
Finally, it is discouraging for my students to find out that the origins of the government’s power to regulate immigration lies in the Chinese Exclusion Act cases. In its desire to keep Chinese from immigrating, the Court assigned control over who can come here to Congress. Forging a White Republic was the founding principle of immigration law.