2017/02/13

The president can restrict immigration

In a February 2, 2017, column, Andrew Napolitano posted an article, The President and Immigration, in which made the following incorrect statements:
The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.
In 1882, Congress gave itself the power to regulate immigration,
Then he goes on to say, correctly:
In 1952, Congress passed the Immigration and Nationality Act (INA), which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons. 
 But then he states:
Yet the courts have limited the president's exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant's political views, religion or colleagues.
However, such court decisions are in conflict with the discretion of the 1952 Immigration and Nationality Act, which contains this clause:
GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND EXCLUDED FROM ADMISSION SEC. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:...(27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States;   
That language provides complete discretionary authority for the executive order.

Sometimes cited in opposition to the executive order, is this clause from the Immigration and nationality Act of 1965:
2. Section 202 of the Immigration and Nationality Act (66 Foreign states. Stat. 175; 8 U.S.C. 1152) is amended to read as follows: (a ) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence, except as specifically provided in section 101(a) (27), section 201(b), ...
However, that act did not repeal or amend Section 212 of the 1952 Act, which remains in effect, and allows discretionary exclusion on grounds of national security.

Constitutional authority for immigration laws

It is not correct that the Constitution does not delegate to Congress no power to control immigration. It does so not in the Naturalization Clause, but in in the Law of Nations Clause: "Congress shall have power ... to punish ... Offenses against the Law of Nations." Entry without official consent is an offense against the law of nations. Indeed, perhaps the most serious such offense.
Like many people, I was curious about this clause and what it meant, so I did some research. Most of the leading treatises were in our online Liberty Library of Constitutional Classics at http://constitution.org/liberlib.htm. It was not easy, because the discussions were not very systematic. I finally summarized them in an article, "Original meaning of offenses against the law of nations" at http://www.constitution.org/cmt/law_of_nations.htm. I composed a partial list:
Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone's Commentaries, and prosecution of those who might violate them:
(1) No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.
(2) Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.
(3) Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.
(4) Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.
(5) Care and decent treatment of prisoners of war.
(6) Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.
(7) Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas.
And, although it was not yet firmly established with all nations in 1788,
(8) Prohibition of enslavement of foreign nationals and international trading in slaves.
Item (2) covers control of entry into a country without official permission.
So, although some prohibited discrimination on First Amendment grounds, the 1952 Act left discretion to the president on grounds of national security.
Religions, invasions, and tribal dominance
But does every movement that calls itself a "religion" qualify as one?
No. If its major tenets are to conquer the nation by infiltration and subversion, then it is political, not religious, and may be properly excluded.

History is a sad tale of struggles for dominance among competing tribal and other groups, some just for land, plunder, and slaves, others over religion. War was so entrenched that religious movements just took it for granted they would be at war with other movements, and those expectations became self fulfilling

Links:

  1. Immigration and Nationality act of 1952.
  2. Immigration and Nationality Act of 1965.

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