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07/02/2018

Originalism and Presidential Immigration Power
Michael McConnell

[Editor's note: Michael McConnell writes: 

I was struck by the post on the Originalism Blog regarding the absence of originalist arguments in Trump v. Hawaii, and especially by the quotation from the estimable Justice Thomas, to the effect that "[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14)." 
 
I wanted to share with your readers a draft I am working on about this issue, as part of my unfinished study of Article II entitled The President Who Would Not Be King. If any readers have substantive comments or suggestions, I would be happy to consider them.
 
Professor McConnell's draft is below.  Thanks to him for giving us this preview.]
 
Excerpt from Michael McConnell, The President Who Would Not Be King (work in progress)

4. Aliens

 The status of natural-born subject under British law (the equivalent of “citizen” under the Constitution) could be attained only by birth or by statute, but the king had the prerogative of converting aliens into “denizens,” who enjoyed many of the rights and privileges of natural-born subjects. Parliament also enjoyed the power of denization, but rarely exercised it. [1] Only Parliament had the full power of naturalization, which gives the former alien all the civil (but not political) rights of a natural-born subject.[2] Under the Act of Settlement of 1701, foreign-born persons were barred from political office.[3] The most important rights at stake for naturalized subjects were to own land and to sue for its protection.

Eighteenth century Americans cared deeply about immigration and naturalization law, but their concern was mostly directed toward encouraging immigration, not discouraging it. The focus was on naturalization rather than on travel or entry, because a liberal naturalization policy was an inducement to immigration. Until 1773, colonial legislatures could and often did pass laws naturalizing foreign settlers on more liberal terms than in Britain. Each colony had its own policy, reflecting social, economic, and especially religious differences. These laws, which were subject to Privy Council review, entitled the beneficiaries to the rights of subjects within the colony (most importantly, the right to own land), but persons naturalized under colonial law remained aliens outside of that colony.[4] In 1773, colonial governors were forbidden to enact any new colonial naturalization laws.[5] The Declaration of Independence, in response, complained that the king “has endeavored to prevent the Population of these States, for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migration hither.”[6] Some colonies attempted to pass laws to counter the British policy of transporting felons and paupers to the colonies, viewing this as a matter of community self-protection against potentially dangerous entrants, but the mother country generally disallowed these laws.[7]

The drafters of the Constitution vested all authority over naturalization in Congress, apparently leaving it to Congress to decide about any grades or classes of citizenship akin to denizenship. As Madison stated, “the Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of Citizenship.”[8] In a relic of the limitation on political rights imposed by the Act of Settlement, the Constitution bars naturalized citizens from serving in the House of Representatives for seven years after attaining citizenship, from serving in the Senate for nine years, and from ever serving as President.[9]

Power over the entry and removal of aliens was less clear. Blackstone classified the power over entry and removal of aliens as among the “principal prerogatives of the king respecting this nation’s intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people.”[10] He inferred the existence of this royal prerogative from the foreign affairs power. Without his usual citation of authority, Blackstone wrote that foreigners from countries at peace with Britain who come to the country “spontaneously” and “behave peaceably” are “under the king’s protection, though liable to be sent home whenever the king sees occasion.”[11] Foreigners from countries “at war with us” are barred from entry without “safe conduct” from the king or certain other functionaries.[12] The King thus had plenary authority over both entry and removal, according to Blackstone. As the great commentator noted, Magna Charta made an exception to this royal authority for the protection of merchants: merchants had the right to enter, tarry, do business, and depart, without action by the Crown.[13] Montesquieu joked “that the English have made the protection of foreign merchants one of the articles of their national liberty.”[14]

Blackstone’s view was not uniformly accepted. The last time a monarch had exercised the prerogative to expel a class of foreigners was in 1575, under Elizabeth, and according to most historians “this branch of the prerogative . . . ha[d] been allowed to fall into desuetude, and may be regarded as no longer existing.”[15] It did not play a significant role in the controversies over prerogative under the Stuarts. In 1792, faced with thousands of refugees from revolutionary France, many of whom might be “of a suspicious description, and very likely either to do mischief of their own accord, or to be fit tools of those who may be desirous of creating confusion”[16] – does that sound familiar? – the British government investigated what measures it could undertake to bar their entry, and in particular, whether the Crown had authority to exclude or expel classes of foreigners without parliamentary sanction.[17] The government obtained a legal opinion, which concluded, contrary to Blackstone, that although the King could exclude or expel subjects of a nation at war with Britain (called “alien enemies”), he had no such authority with respect to subjects of nations at peace with Britain (called “alien friends”). Even Crown lawyers concluded that any general power the King once had over the subject had been so little used that it would be a problematic basis for legal action, and urged enactment of legislation.[18] Accordingly, Parliament passed the Aliens Act of 1793, giving the king power “by proclamation” to order any alien to leave the realm, and regulating entry.[19] Five years later, the U. S. Congress would enact its own Alien Acts, called the “Alien Enemies Act” and the “Alien Friends Act,” granting remarkably similar powers to President John Adams.[20] No one, to my knowledge, even suggested that Adams had this power as a matter of inherent presidential authority. This suggests that the founders did not share Blackstone’s more capacious interpretation of executive authority on this point.

Neither the Committee of Detail nor the full Convention addressed the power to exclude or expel aliens. In light of the apparent method of the Committee to allocate all prerogative powers of the British monarch to Congress or the President, or to deny them to the federal government altogether, this failure to address the power suggests that Rutledge and Wilson, well versed as they were in British law, may have agreed with the 1792 legal opinion that these were not prerogative powers. There was some question even as to whether Congress or the states had this unmentioned power. Jefferson, in his draft Kentucky Resolutions of 1798, maintained that because no power over “alien friends” was delegated to the United States, persons of that description were under the “jurisdiction and protection” of the states where they were present.[21] Evidently that was a minority position, at least at the national level, but it suggests a lack of consensus. After the expiration of the Alien Acts in 1801, Congress did not again pass legislation governing the entry or expulsion of aliens until the Immigration Act of 1882. For most of the first century of the Republic, states rather than the federal government regulated immigration, while Congress had exclusive authority over naturalization.

It follows that any power the federal government has over the entry and expulsion of aliens must be derived from another enumerated power – most plausibly, the power to regulate commerce with foreign nations – and the extent of that power is demarcated by statute, leaving the remainder to the states. Far from being an exclusive national power, the Congress’s immigration power is merely incidental to another enumerated power. Moreover, any power the President has over the subject is strictly a product of congressional statute. Blackstone’s view that this power is part and parcel of the foreign affairs power, and therefore inherently both federal and executive in nature, was not accepted by the founders.

Under current law, the President has power “by proclamation” – a clear echo of these older statutes – to suspend the entry of “any class of aliens” into the United States whose entry he “finds . . . would be detrimental to the interests of the United States.”[22] This is an example of a formerly prerogative power, first assigned to the legislative branch and later redelegated back to the executive in plenary form. As this is being written, litigation is underway to test whether the courts have authority to review the President’s findings contained in a presidential proclamation under this statute.

[1] 1 Blackstone, supra note 40, at *272, *374; H.S.Q. Henriques, The Law of Aliens and Naturalization 17-19 (1906).

[2] Id.

[3] Act of Settlement (1701), section ___.

[4] Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America 24-26, 33-34 (2006); Ann Dummett & Andrew Nicol, Subjects, Citizens, Aliens, and Others: Nationality and Immigration Law 76 (1990).

[5] Zolberg, at 25.

[6] Declaration of Independence, cite.

[7] Zolberg, at 26, 40-43.

[8] 2 Farrand, at 235.

[9] U.S. Const, Art. I, § 2, cl.2 (House); id. at § 3, cl. 3 (Senate); Art. II, § 1, cl. 5 (President).

[10] 1 Blackstone, supra note 40, at *261.

[11] Id. at *259-260.

[12] Id.

[13] Blackstone, supra, at *260-261; see Hale’s Prerogatives, supra, at 296.

[14] Montesquieu, Spirit of the Laws 20, 13, quoted in Blackstone, supra, at *260-261.

[15] H.S.Q. Henriques, The Law of Aliens and Naturalization 11 (1906).

[16] Letter from J.B. Burgess to Lord Grenville (Sept. 14, 1792), quoted in J.R. Dinwiddy, The Use of the Crown’s Power of Deportation Under the Aliens Act, 1793-1826, 41 Historical Research 193, 193 (1968).

[17] Dinwiddy, supra, at 193.

[18] Id.

[19] Id. at 194.

[20] Alien Enemies Act, 3 Stat. 577 (July 6, 1798); Alien Friends Act, 1 Stat. 570 (June 25, 1798).

[21] Kentucky Resolutions of 1798, cite.

[22] Immigration and Nationality Act, §212(f).