I’ve now had time to read and think about John Marshall’s comments on Congress’ power over immigration (or, strictly speaking, the comments in the 1799 report of the minority of the Virginia Legislature, attributed to Marshall), recommended by Kurt Lash in the context of previous posts on the immigration power.

To recap, the Federalist-dominated Congress enacted the Alien and Sedition Acts in 1798, which among other things authorized the removal of aliens the President identified as dangerous to the United States.  The Virginia Legislature passed a resolution objecting to the Acts as beyond Congress’ constitutional power.  In response, Henry Lee submitted “An Address of the Fifty-Eight Federal Members of the Virginia Legislature,” dissenting from the Legislature’s resolutions (thus, defending Congress’ power to pass the Alien and Sedition Acts).  The Address itself did not identify an author, but Professor Lash and others argue persuasively that the author was John Marshall.  (In this post, I will assume that is correct).  James Madison then wrote a response to the Address (and to other arguments against the resolution) which was adopted by the Legislature’s majority.

Two points stand out in my reading.  I’ll discuss the first in this post.  As Professor Lash indicates, the “Address” and Madison’s response are powerful evidence against the idea of inherent or extraconstitutional immigration powers arising merely from national sovereignty (as suggested, for example, in this post by Patrick Charles).  Marshall, defending Congress’ power to pass the Alien Acts, does not even hint at an inherent congressional power.  The Address opens with a theoretical discussion of federalism, arguing that matters of national concern should be left to the national government.  It then says, though, “it is admitted, that if in the formation of our constitution a different arrangement is made, that arrangement, however inconvenient, must be sacredly obeyed till constitutionally changed.”  (p. 17).  Marshall continues by observing that “[t]he government of the United States … possesses only delegated powers, and it is proper to enquire whether the power now under consideration [that is, the power over aliens] be delegated or not.”

The Address then argues that the power to remove dangerous aliens stems from three specific textual powers: the power to declare war and grant letters of marque and reprisal; the power to punish offenses against the law of nations; and the power to protect the states against invasion. (pp. 18-19).  It also argues (p. 17) that although the power to exclude dangerous aliens isn’t mentioned expressly in the Constitution, that alone does not foreclose it: the Tenth Amendment, it specifically says, requires powers to be delegated but omits the word “expressly” (found in the comparable clause of the Articles of Confederation), thus showing that under the Amendment powers may be delegated implicitly.

This presentation, it seems to me, devastates the claim that the founding generation understood Congress to have an inherent power over immigration that arose from national sovereignty outside the Constitution and in spite of the Tenth Amendment.  Marshall, who was defending Congress’ exercise of power over aliens, had every incentive to make that argument if it was at all plausible.  He did not.  Instead, he conceded both that the national government had only delegated powers and that the Tenth Amendment applied to the question of immigration power.  Operating wholly within the framework of delegated powers, he argued that three specific clauses contained the power at issue (that is, the power to remove dangerous aliens) — although notably his arguments did not expressly claim or implicit add up to a general congressional power over immigration.

Madison’s response to Marshall confirms the general rejection of inherent national powers.  First Madison re-asserts in uncompromising terms (p. 2) the doctrine of delegated powers:

in all contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th [Tenth] Amendment, now a part of the Constitution, which expressly declares, “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.”

Madison notes his opponents’ reliance on “a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected.”  But this alternative view, which he works hard to refute, is not the idea of inherent powers — rather, it is Hamilton’s idea of Congress’ “general welfare” power found (supposedly) in Article I, Section 8 but not tied to Congress’ other enumerated powers (a point Marshall did not argue).  Madison’s response spends no time at all discussing or refuting the idea of inherent national power over immigration, apart from his unqualified restatement of the delegated powers doctrine quoted above.  Instead, in addition to refuting the “general welfare” argument, he engages the three specific clauses Marshall listed as sources of Congress’ power and rejects each of them.

Madison’s response is consistent with the natural reading of Marshall’s Address — that Marshall accepted the idea of delegated powers both generally and as applied to power over aliens, and that Marshall thought the national power over aliens, if it existed, had to come (implicitly) from a specific textual grant of power to the national government.

Of course, one can debate the value of post-ratification evidence to the Constitution’s original meaning.  My view is that the ratification-era evidence against inherent national powers is so strong that one need not look at post-ratification history at all.  But for those inclined to credit arguments in favor of inherent national power, the Marshall-Madison exchange of 1799 seems hard to explain.  Marshall was a moderate nationalist, defending the exercise of congressional power over aliens — he had every institutional and rhetorical reason to advance an inherent powers argument if he thought it would have any traction.  Yet he did not make the argument (and Madison did not think the argument worth a detailed response apart from a citation to the Tenth Amendment).  Either Marshall did not think of the argument or he thought it so unpersuasive as to be not worth mentioning (and indeed, he implicitly conceded it by arguing purely in terms of delegated powers and acknowledging the applicability of the Tenth Amendment).  In either event, it seems difficult to escape the conclusion that inherent national power over aliens was not a background assumption of the founding generation, as Marshall and Madison understood it.

Of course, that underscores the mystery of how the founding generation actually did think about the power over aliens, which I will consider next.

Marshall and Madison on Immigration Power, Part 2

I previously noted that neither Marshall nor Madison gave any credence at all to the idea that Congress might have an inherent extraconstitutional authority over aliens as a consequence of national sovereignty.  They both assumed that the structure of delegated powers indicated in the original Constitution and confirmed in the Tenth Amendment applied to power over aliens.  But since the Constitution’s text doesn’t mention power over aliens directly, where did they think it could be found?  Some thoughts:

1.  Neither Marshall nor Madison suggested that Congress had a single unified power over aliens.  As described previously, Marshall’s defense of the Alien Acts identified three textual powers that (he said) gave Congress power over supposedly dangerous aliens (the target of the Alien Acts).  Two of Marshall’s clauses (the war power and the power to punish offenses against the law of nations) clearly did not apply to aliens generally.  The third, the power to protect states against invasion, might be read that way (if one thought of unwelcome immigrants as invaders), but that doesn’t seem to have been Marshall’s meaning.  He said that the power allowed removal of dangerous aliens because “[t]o cause to depart from our territory the individuals of a nation from whom invasion was apprehended, is most obviously a measure of precaution dictated by prudence and warranted by justice.”  (p.19).  That is, in the particular situation removal was warranted in anticipation of impending nation-to-nation hostilities.  This wouldn’t amount to a general power over aliens.  Madison, in response, of course denied that Congress had even as much power over aliens as Marshall contended.  His position was essentially that Congress had power only over enemy aliens (that is, citizens of a nation with which the US was at war).

2.  Neither Marshall nor Madison discussed the naturalization clause as a possible source of Congress’ power.  That’s a bit problematic for people who think that clause is the best candidate for a general textual power over immigration.  Notably, David Currie’s account of the congressional debates over the Alien Acts similarly indicates that the naturalization clause wasn’t regarded as a likely source of Congress’ power.  (The Constitution in Congress: The Federalist Period, pp. 258-259).  I wouldn’t say that that completely settles it.  The naturalization clause still looks good: under the 1790 Naturalization Act, eligibility for naturalization turned principally on how long an alien had lived in the United States.  (The first of the 1798 Alien Acts added more requirements, but time in the US remained a central qualification).  Thus one obvious way for Congress to exercise control over naturalization was to control who could come into and remain in the US.  Further, the naturalization clause gives power to “establish a uniform Rule of Naturalization,” and any rule that turned on time spent in the country wouldn’t be entirely “uniform” if states had different rules on admitting and removing aliens.  That might be enough to make Congress’ control over aliens’ entrance and residency necessary and proper to the naturalization power.  But apparently it didn’t seem a worthwhile argument in 1798-99 — naturalization clause proponents need some explanation, or some more weighty evidence in their favor, I’d say.

3.  Marshall and Madison both thought the states had some power over aliens.  Both referred to Virginia’s 1792 statute on dangerous aliens.  Marshall pointed out (p. 21) that:

Our [i.e., Virginia’s] laws expressly authorize the executive to apprehend and secure or compel to depart this commonwealth, all suspicious persons being the subject of any foreign power or state, from whom the President of the United States shall apprehend hostile designs against the said states.

No one, Marshall said, thought the Virginia law was unconstitutional.  Madison agreed (p. 11), but distinguished the Virginia law as applying to aliens with “hostile designs” while “the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended.”  (Madison’s distinction was actually pretty weak, as there did not appear to be a great deal of difference between the Virginia statute and the Alien Act; Madison seemed to be implying that a broader statute at the state level might be unconstitutional, but he didn’t say why, and it obviously wasn’t because he thought the power was reserved to Congress.)  Madison did elsewhere seem to affirm that the power over aliens was (or could be) a residual power of the states (p. 11, responding to the Federalist argument that if Congress couldn’t regulate aliens no one could, which would be absurd).

Further, Marshall in particular seemed to understand Article I, Section 9 (the migration clause) to imply a state power to refuse admission to aliens.  That clause provides:

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 one thousand eight hundred and eight.

One of the arguments against the Alien Acts was that they violated the migration clause by prohibiting migration prior to 1808.  But, Marshall said, pointing to the Virginia statute, the aliens in question were not ones Virginia had “thought proper to admit,” since they were removable under state law as well as under federal law: “No law of this state authorizes the migration in to it of persons of the description comprehended in the act of the United States. … [T]he state of Virginia does not admit, but excludes from her territory all those who are contemplated by the alien law.”  (He also argued that Section 9’s general prohibition on laws against migration didn’t apply to specific laws responding to national security threats).  Marshall’s account of the migration clause assumes that states have the constitutional power to “choose to admit,” or to not admit, aliens generally (which seems consistent with the clause’s text).

4.  Finally, it’s interesting that the 1792 Virginia law specifically refers to a determination of dangerousness by the US President.  Congress’ Act also delegated almost complete discretion to the President: “[I]t 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 … to depart out of the territory of the United States.” There are surely hints here that the President has a special role in dealing with aliens, but neither Marshall nor Madison develops the idea in the arguments.

Of course, this exchange as a whole was about the removal of aliens rather than the initial decision to admit them; at best it’s reflective of thinking among legislators in Virginia, and in any event it took place a decade after the Constitution’s ratification.  And it’s somewhat inconclusive, in that neither author attempts a comprehensive theory of the power over aliens.  But with these qualifications, it seems to offer support for two additional conclusions (beyond the rejection of inherent power): Congress might not have a comprehensive power over aliens, and the states seemed to have some, though perhaps not unlimited, power to remove or refuse to admit aliens.  In other words, it’s consistent with the tentative thoughts Mike Rappaport outlined here.

EDITOR’S NOTE: This article was originally published as two blog posts (here and here) at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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