Posted on 11/27/2015 9:17:06 AM PST by JOHN W K
See: Can Governors Legally Block Refugees from Coming to Their States?
"In response to the influx of migrants "from the American invasions of Afghanistan and Iraq," Congress in 2005 gave President George W. Bush unlimited authority to admit people for humanitarian purposes, noted Judge Napolitano.
And that has since been passed over to President Obama, he added.
"Here, he has the absolute lawful authority – may not like the way he’s exercising it, but he has it," said the judge. "To admit people for political asylum and humanitarian purposes."
What Judge Napolitano and Foxnews ignore is, Congress cannot assume powers not granted it by the Constitution. This is basic 101 constitutional law! And there is nothing in the Constitution remotely suggesting our federal government was granted a power to allow tens of thousands or millions of foreigners to enter upon American soil, and then force a State to accept any of them. As a matter of fact the historical evidence establishes Judge Napolitano is flat wrong in his assertion!
Let us recall some historical facts regarding Congress' delegated power "To establish an uniform Rule of Naturalization"
Under the Articles of Confederation which was in full force and effect during the writing of our existing Constitution, each State regulated the flow of immigration into their State. Likewise, each State made its own rules by which a foreigner living in their State became a citizen of that State. Keep in mind the above powers are two distinct and separate powers: the former dealing with the flow of foreigners into a state [ a power retained by the States under the Tenth Amendment], while the latter establishes how a foreigner living in a state may become a citizen of that state.
During the Convention of 1787 and the writing of our existing Constitution, the power of a State to make its own rules by which a foreigner became a citizen of that State became a bone of contention, especially considering the new Constitution proposed under Article 4, Section 2.
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
Thus, if one State's rules allowed citizenship to foreigners indiscriminately and without assurances the granting of citizenship required loyalty, good character, and that a productive person was being granted citizenship, in addition to other beneficial qualities necessary to promote the State's general welfare, an undesirable person could be granted citizenship in one State and then move to another State and be entitled to that State's privileges and immunities without the State’s consent!
And this is why the limited power to set rules by which a foreigner living in a particular State could obtain citizenship was delegated to Congress. It was to prevent one State from granting citizenship to undesirable foreigners allowed into their State, and then forcing these "citizens" upon other States who would then be entitled to that States privileges and immunities.
Chief Justice Taney summarized the very object of allowing the federal government to set the rules for naturalization as follows: "Its sole object was to prevent one State from forcing upon all the others and upon the General Government, persons as citizens whom they were unwilling to admit as such." Passenger Cases (1849). And Justice Taney's statement is in full harmony with the intentions of our forefathers expressed during our nation’s first Rule of Naturalization, Feb. 3rd, 1790!
REPRESENTATIVE SHERMAN, who attended the Constitutional Convention which framed our Constitution points to the intentions for which a power over naturalization was granted to Congress. He says: "that Congress should have the power of naturalization, in order toprevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner. It was therefore meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several States." see CONGRESSIONAL DEBATES, Rule of Naturalization, Feb. 3rd, 1790 PAGE 1148
In addition, REPRESENTATIVE WHITE while debating the Rule of Naturalization notes the narrow limits of what "Naturalization" [the power granted to Congress] means, and he â€doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several State,all, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization and not to a general definition of what constitutes the rights of citizenship in the several States." see: Rule of Naturalization, Feb. 3rd, 1790, page 1152
And finally, REPRESENTATIVE STONE … concluded that the laws and constitutions of the States, and the constitution of the United States; would trace out the steps by which they should acquire certain degrees of citizenship [page 1156]. Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized, under a general law, shall be entitled to privileges which the States withhold from native citizens. See: Rule of Naturalization, Feb. 3rd, 1790, pages 1156 and 1157
Finally, let us recall what Representative BURKE says during our Nations` first debate on a RULE OF NATURALIZATION, FEB. 3RD, 1790
Mr. BURKE thought it of importance to fill the country with useful men, such as farmers, mechanics, and manufacturers, and, therefore, would hold out every encouragement to them to emigrate to America. This class he would receive on liberal terms; and he was satisfied there would be room enough for them, and for their posterity, for five hundred years to come. There was another class of men, whom he did not think useful, and he did not care what impediments were thrown in their way; such as your European merchants, and factors of merchants, who come with a view of remaining so long as will enable them to acquire a fortune, and then they will leave the country, and carry off all their property with them. These people injure us more than they do us good, and, except in this last sentiment, I can compare them to nothing but leeches. They stick to us until they get their fill of our best blood, and then they fall off and leave us. I look upon the privilege of an American citizen to be an honorable one, and it ought not to be thrown away upon such people. There is another class also that I would interdict, that is, the convicts and criminals which they pour out of British jails. I wish sincerely some mode could be adopted to prevent the importation of such; but that, perhaps, is not in our power; the introduction of them ought to be considered as a high misdemeanor.
So, as it turns out Judge Napolitano is flat wrong in his assertion regarding Obama’s power. In addition, the kind of immigrants Obama is attempting to force upon the states from Mexico, Central America and now Syria ___ the poverty stricken, poorly educated, low skilled, and/or destitute populations of other countries ____ ought to be viewed as a “high misdemeanor†which happens to be an impeachable offense!
Perhaps someday we will at least find one big media source which supports and defends our written Constitution and its documented legislative intent.
JWK
The surest way for Obama to accomplish his fundamental transformation of America is to flood America with the poverty stricken and destitute populations of other countries.
Falling back to this overly intellectual silliness as our only strategy is why we lose.
It's also why Trump is absolutely kicking ass in both parties. He ignores that stuff and just says "F___ YOU!"
Not exactly.
"In response to the influx of migrants "from the American invasions of Afghanistan and Iraq," Congress in 2005 gave President George W. Bush unlimited authority to admit people for humanitarian purposes, noted Judge Napolitano.And that has since been passed over to President Obama, he added."
not exactly, there were restrictions on who could be imported based on whether they pose a danger or not- The judge made that clarification I believe if I heard him right (I saw that segment on fox with him)
Thanks to you both for clarifying some points I was confused about! Well done.
I'd have to research it but I bet Congress left it up to the Executive to determine who poses a danger.
So does that mean it's up to the individual states to determine who gets admitted? If so that seems to run contrary contrary to the arguments made in the original post that no state should be able to admit a foreigner that the other states may find objectionable.
It seems to me that Article IV Section 2 is unworkable unless the feds control immigration.
JWK
Suggest what? I was responding to Amendment10’s post 16. I just referenced the argument made in your original post so I included you.
There is nothing in the OP suggesting what you state above. Was there some specific wording which gave you that impression?
JWK
I certainly did not bring up that question in the OP.
JWK
How about:
"an undesirable person could be granted citizenship in one State and then move to another State and be entitled to that State's privileges and immunities without the State's consent!
Or:
"Chief Justice Taney summarized the very object of allowing the federal government to set the rules for naturalization as follows: "Its sole object was to prevent one State from forcing upon all the others and upon the General Government, persons as citizens whom they were unwilling to admit as such.""
Maybe I misunderstand your argument but then why include these passages?
What? I thought the whole point of your post was that the feds don't have the constitutional authority to put refugees in a state that doesn't want them. That is, the state can deny them residency.
By definition, if the federal government allows them in they are legal residents of the US.
Regarding unconstitutional regulation of immigration by the feds, note the following example. Activist justices wrongly decided the late 19th century immigration case of United States v. Wong Kim Ark in Mr. Arks favor, imo, the Courts decision based on a twisted interpretation of Section 1 of the 14th Amendment (14A).
Thanks to Attorney Mark Levin I have included excerpts from the congressional record about 14A at the bottom of this post. The excerpts concern federal lawmakers who proposed 14A to the states. The lawmakers clarified that a person is born in the USA to parents who are not USA citizens is likewise not a USA citizen.
"So does that mean it's up to the individual states to determine who gets admitted?"
By being admitted, do you mean do the individual states get to decide their own rules for which legal immigrants, as defined by a given state, get to become citizens of the USA, and as citizens entitled to all personal protections provided by the Constitution? The decision to make rules for citizenship is actually uniquely up to the feds as evidenced by the ”uniform Rule of Naturalization” Clause (1.8.4).
Regarding Section 2 of Article IV, consider this example about state privileges and immunities. Many young adults have probably celebrated reaching the legal drinking age of neighboring state having a lower legal drinking age by going to that state to purchase and drink an alcoholic beverage since they still have to wait until they are legal drinking age in their own state to do so.
Again, I have not yet run across siginficant examples of Founding States intentions for Section 2 of Article IV. So please keep your eyes open for such examples.
Below are excerpts from the post-Civil War congressional record which are related to the ”anchor baby” controversy. And regardless what Bill OReilly wants everybody to believe about anchor babies, the federal lawmakers who proposed 14A to the states had clarified that 14A does not automatically make a person born in the states a citizen of the USA.
"The first amendment is to section one, declaring that ”all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens [emphases added], who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” - Senator Jacob Howard, Congressional Globe, 1774 - 1875 Congressional Globe, Senate, 39th Congress, 1st Session.
And to clear up any confusion about ”foreigners” and ”aliens” in the excerpt above being used to describe the family members of ambassadors or foreign ministers, the excerpt below is another official perspective on what 14As jurisdiction clause means.
"Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that ” all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means ”subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajo Indians are subject to the Complete jurisdiction of the United States? What do we mean by ”subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. [emphases added] Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make . . .” - Senator Lyman Trumbull, Congressional Globe, 1774 - 1875 Congressional Globe, Senate, 39th Congress, 1st Session. (See middle of first column.)
No, I mean admitted to the state to live.
I'll ask you the question I posed to the author of the original post. Do you think a state can refuse residency to a legal resident of the US (assuming no criminal activity)?
Remember, a refugee becomes a legal resident of the US once admitted by the federal government.
Regarding WKA and the 14th, I've always found Sen. Howard's statement somewhat ambiguous but tend to favor the following interpretation:
"This will not, of course, include persons born in the United States who are foreigners,[that is] aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Otherwise, the recitation of the three categories would be redundant.
Finally, I don't put too much stock in the congressional discussions leading up to passage of legislation simply because I'm sure if I had the complete record I could find other opinions about what the amendment should mean. What matters is what it actually says and how it has been interpreted by the courts, and in the case of the 14th it's pretty clear that "subject to the jurisdiction" has it's common meaning - that is: fully subject to US law.
JWK
Again, I am not familiar with examples of such situations. In my opinion, residency is an immigration issue, the states uniquely having the 10th Amendment-protected power to regulate immigration as evidenced by the writings of Jefferson and Madison.
Therefore, a legal resident is a resident under a states jurisdiction, not the federal governments jurisdiction. I would like to think that a state would not kick a resident out of a state without a reason, but I do not see anything from stopping a state from doings so. Insights welcome.
"Remember, a refugee becomes a legal resident of the US once admitted by the federal government."
If I understand you correctly, I do not see the constitutional authority of the feds to allow a refugee to be a legal resident in a state without the consent of that state.
Please bear in mind that one of the few powers that the states have delegated to the feds to regulate anything inside a state is to regulate the US Mail Service (1.8.7). So with the exception of the feds powers of Clause 17 of the Constitutions Section 8 of Article I and the 5th Amendment to own land in a state, again, the feds are basically limited to delivering the mail and making the rules of citizenship.
"Finally, I don't put too much stock in the congressional discussions leading up to passage of legislation simply because I'm sure if I had the complete record I could find other opinions about what the amendment should mean."
As post-Civil War Senator Lyman Trumbull had noted, the fact that Native Americans were not subject to the full jurisdiction of the US means that that they were not automatically citizens after 14th Amendment was ratified, regardless if they were born in US territory.
In fact, note that Native Americans were not regarded as citizens until Congress made the Indian Citizenship Act in 1924.
Indian Citizenship Act
This is enough proof, for me anyway, that people born in the USA to non-citizen parents are not automatically citizens of the USA under the 14th Amendment, regardless if the parents are residents under a states immigration laws.
Your question suggests our federal government is authorized to allow entry to all who arrive at our ports of entry and grant them legal status.
JWK
Tell me if I'm wrong but I think you're saying the states have the exclusive power to regulate immigration.
Would you then agree that CA could allow anyone to immigrate, making them citizens of CA, who would then fall under the protections of Article IV Section 2?
I would like to think that a state would not kick a resident out of a state without a reason, but I do not see anything from stopping a state from doings so.
Well, Article IV implies it and SCOTUS explicitly stated in Corfield v. Coryell that the right of a citizen of one state to reside in another state is indeed guaranteed by Article IV Section 2.
This is enough proof, for me anyway, that people born in the USA to non-citizen parents are not automatically citizens of the USA under the 14th Amendment, regardless if the parents are residents under a states immigration laws.
It's true that Indians were not subject to US jurisdiction, but not because they weren't citizens. It was because the federal government's relationship with them was governed by treaties in which the government relinquished most jurisdiction. It's exactly analogous to the way we treat foreign diplomats and their offspring, which is also governed by treaty.
Non-diplomatic immigrants here, legal or illegal, are fully subject to our jurisdiction.
Who cares what I say about this issue? Again, constitutional experts Thomas Jefferson and James Madison had clearly indicated that the states uniquely have the 10th Amendment-protected power to regulate immigration.
"Would you then agree that CA could allow anyone to immigrate, making them citizens of CA, who would then fall under the protections of Article IV Section 2?"
Your argument is basically the reason why the Founding States made the ”uniform Rule of Naturalization” Clause (1.8.4). If I understand correctly, before the Constitution was ratified, the individual colonies could make immigrants in their colonies citizens of the colony which also entitled them to the privileges of the Confederation.
But since it was known that it was easier to become a citizen in some colonies than it was in others, some immigrants used the ”easy” colonies as a back door to become a citizen of that colony and therefore enjoy the protections of the Confederation.
But the colonies with higher citizenship standards objected to this and when the Constitution was drafted the states agreed to include the ”uniform Rule of Naturalization” Clause to insure higher citizenship standards.
Regarding California non-citizen residents, there is nothing to stop California, except angry California taxpayers, from using its 10th Amendment-protected power to spoil immigrants with California state welfare all it wants to imo. But since Article IV, Section 2 of the federal Constitution applies only to citizens of the USA, not to non-citizens, the Cornfield v. Coryell case likewise addressing the rights of out-of-state USA citizens in New Jersey, other states are still free to apply their 10th Amendment-based immigration laws to non-USA citizen residents of California.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.