Congressional Power Over Immigrants
lesl at UDEL.EDU
Tue Aug 29 10:33:58 PDT 2000
If "commerce means intercourse" as Marshall says, why would it NOT include the
movement of people as well as the movement of goods? When people hire someone
to transport them somewhere, they are paying a fee for service. Why is that not
in an ordinary understanding "comerce"? Non-commercial travel, in the sense of
simply walking or riding one's own horse over a state line (or form
Canada)might raise a different question, but in saying "commerce is intercourse"
it seems to me that Marshall was establishing the proposition that movement from
one place to another whether of persons or of things was properly to be counted
as "intercourse" therefore commerce. (granted he does confuse matters by saying
"every species of _commercial_ intercourse" (using the to-be-defined term in its
own definition) but this could (could it not?) have been a way of saying, here
we have not only navigation (already by definiton part of commerce) but even
navigation for-profit ("commercial intercourse") so a fortiori part of commerce.
Sanford Levinson wrote:
> 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?
> 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
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