A number of cities across the U.S. have declared themselves “sanctuary cities” and refuse to assist with federal immigration enforcement. A bill working its way through the California state assembly would effectively make it a “sanctuary state.” This has raised the ire of many conservatives and Republicans, and led Pres. Trump to issue an executive order to crack down on these cities – at least in a limited way. Supporters of strict immigration controls insist state and local government must cooperate with federal policy.

On the other side of the equation, when Pres. Obama announced plans to resettle large numbers of refugees in the fall of 2015, many states rebelled. Governors in more than a dozen states announced their intention to suspend or restrict resettlement. Several state legislatures considered bills to withhold all state resources and personnel from federal resettlement efforts. Democrats and progressives cried foul, insisting states were obligated to cooperate with federal immigration policy.

So, which side is right?

According to Thomas Jefferson – both.

The issue of immigration and how to deal with aliens is nothing new. In fact, the issue divided the country in 1798.

At the time, the U.S. was involved in an undeclared naval war with France. The Quasi-War stemmed from French anger over a treaty opening up trade between the United States and Great Britain, and a U.S. refusal to pay Revolutionary War debts after the French Revolution toppled its royal government. American officials argued that since the French government the U.S. originally borrowed money from no longer existed, the United States was free from the obligation. The conflict raised the ire of many Americans, creating an anti-French backlash. Many Americans viewed the French as hostile and perhaps dangerous. In response, Congress passed the Alien and Sedition Acts.

Four separate bills made up the Alien and Sedition Acts. Two of these bills dealt directly with how to deal with “aliens” living in the U.S. Although they ostensibly applied to any non-citizen, they were intended primarily to target French nationals living or visiting America.

The Alien Friends Act (An Act Concerning Aliens) passed on June 25 gave the president sweeping power to deport “dangerous” aliens.

“It shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States, within such time as shall be expressed in such order.”

The law also empowered the president to issue licenses to aliens, granting them temporary residency in the U.S. The act also required ships entering U.S. ports to declare any aliens on board.

On July 6, Congress passed the Alien Enemies Act (An Act Respecting Alien Enemies), authorizing the arrest, imprisonment and deportation of any male who was a citizen of a nation at war with the U.S., even without any evidence he was an actual threat. There was no provision for judicial due process.

“All natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”

The powers conferred upon the executive branch by these two laws were similar to those claimed by Pres. Trump. They empowered the federal government to limit entry by aliens and physically remove them from the country.

In response to the Alien and Sedition Acts, Thomas Jefferson drafted the Kentucky Resolutions of 1798. These resolutions were adopted by the Kentucky legislature in November 1798. Although they primarily addressed the Sedition Act (a law that essentially criminalized criticism of the president or Congress), Jefferson used two sections of the resolutions to address the issue of the Alien Acts.

Jefferson emphatically asserted that while the federal government has the constitutional authority to establish the rules of naturalization – granting of citizenship status – regulating immigration and making rules relating to “Alien friends” was left to the states.

“Alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,’ the act of the Congress of the United States, passed on the — day of July, 1798, intituled ‘An Act concerning aliens,’ which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.”

Jefferson also reasoned that a clause in the Constitution intended to prevent Congress from interfering with slavery for 20 years inferred the federal government was also prohibited from more generally regulating the people who states allowed within their borders.

“In addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that ‘the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808’ that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.”

Although the constitutional provision referenced in the resolution was specifically aimed at preventing the federal government from interfering with the slave trade until 1808, (keep in mind, regulation of slavery would ultimately fall under the commerce clause) Jefferson understood was rooted in a more general principle leaving states broad authority to determine whom they allowed in and whom they kept out – not only slaves  – but more generally foreign alien friends.

Jefferson did not envision a uniform immigration policy. One could argue that America needs a uniform policy, because it simply can’t work with 50 states making 50 different sets of rules. But that didn’t change Jefferson’s constitutional calculus.

As with all issues, Jefferson asserted federal power does not exist where none was delegated.

In his view, the states clearly delegated the federal government authority over citizenship. The federal government was also delegated the power to exercise some power over immigration through the commerce clause and the power to “define and punish … Offenses against the Law of Nations” found in Article I, Section 8, Clause 10 of the Constitution.

But the states were expected to have a seat at the table as well.

Mike Maharrey

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