Congressional Power Over Immigrants

[Mark Graber]

Howard Gillman has a nice article in a recent Political Research Quarterly indicating that neither Marshall nor Story held the view of the commerce clause attributed to them by New dealers.  My research is confirming this, with lots of material indicating that National Republicans and Whigs believed in a narrower commerce clause than FDR, though a broader commerce clause than Jefferson.  I'm on vacation so do not have full cites, but take a look at WITHERS V. BUCKLEY and VEAZIE V. MOOR (no promises that I've gotten these cases right).  For that matter there is a case where they indicate Congress has no power over ferries.

Mark A. Graber
mgraber at gvpt.umd.edu

<<< SLevinson at MAIL.LAW.UTEXAS.EDU  8/21  7:21p >>>
It's not clear to me why Congress's power to regulate navigation assumes
the legitimacy of the right to regulate what is brought in on the boats.  I
would think that the regulation of navigation meant to assure the safety of
the boats, the training of the captains, etc., a la Cooley.  The licensing
act in Gibbons, could presumably be defended on the grounds that Congress
wanted to make sure that people who sailed the Hudson River were competent,
that they wanted to make sure there weren't too many ships that could cause
congestion, wrecks, etc.  But could congress have used the licensing power
to require that the boats not transport anyone from Ireland or a Roman
Catholic? And I agree with David that the Commerce clause or the Uniform
Naturalization clause cannot plausibly be used to defend the Alien Act.  So
what does, other than the inherent powers attached to sovereignty?

Sandy

At 06:31 PM 08/21/2000 -0400, you wrote:
>Both Marshall and Johnson (in dissent) discuss the Migration and
Importation Clause in Gibbons v. Ogden. And if memory serves, Marshall
reads it as an express (and temporally limited) exception to the commerce
power. So, without having the details clearly in mind, it seems that the
Court did suggest that in the absence of that clause Congress would have
had the power under the Commerce Clause to prohibit such "migration and
importation." Again, if I recall correctly, it would not have made any
difference whether the migration/importation was of slaves or immigrants -
because the basis for the assertion of regulatory authority would have been
the power over navigation, which the Court was at pains to find included
within the commerce power. In any case, I wonder whether the issue
underlying the Alien Act dispute was quite the same. Congress was not
attempting to regulate vessels carrying aliens into the United States, but
the activities of aliens in the United States who had al!
>ready arrived and were residing in the country - a kind of government
enforced exportation of aliens lawfully in the country for activities
committed while residing here. Even if one were to see an alien as a kind
of "import," under the doctrine of cases like the License Cases (admittedly
decided some years later), I assume Congress's regulatory authority under
the commerce power would not have extended so far.
>
>
>>>> SLevinson at MAIL.LAW.UTEXAS.EDU 08/21/00 03:50PM >>>
>What, if anything, can be inferred from Article I, Section 10 and the ban
>on legislation, prior to 1808, concerning "The Migration and Importation of
>Such Persons as any of the States now existing shall think proper to
>admit...."?  Does this mean that in the absence of the clause, Congress
>*would* have the power to "prohibit" such Migration and Importation?  But
>where would such power come from?
>
>Do we read this article as concerning *only* slaves (the only persons who
>could be said, like other items of commerce, to be "imported" as chattels)
>and therefore without educative value as to, say, indentured servants or
>other non-slave immigrants?  That reading, of course, is "historical"
>rather than "textual" (perhaps another good example of the difference that
>one's interpretive theory might make to constitutional interpretation).
>Does anyone know if the M&I clause was used much as an affirmative argument
>re congressional power outside the prohibition of the international slave
>trade?  I *do* know that it was used by Albert Gallatin and others in 1798
>to argue against the constitutional of the Alien Act, which obviously
>represented an attempt by Congress to nationalize the law of "migration"?
>Though, in keeping with our overall discussion of inherent powers, Gallatin
>did argue that Congress had an inherent power to regulate aliens from
>countries with which we at war (which, of course, did not include the
>French aliens who were the main target of the Alien Act).
>
>Sandy Levinson
>