CONSTITUTIONAL CONVERSATIONS
Immigration in Context
By
M.E. Boyd, Esq. “Miss Constitution”
This is a hard topic for discussion and for many people to understand. It is difficult, in part, because it is fraught with “loaded” words and political correctness overtones that tend to drown out the conversation. Let’s see if we can unpack the issue calmly.
Naturalization is the process by which a person acquires the privileges and immunities of United States citizenship. It is covered under Title 8, United States Code, section 1401 et seq. Whole groups can become citizens through treaty, or acquisition of territory, or by application of territories to become a state.
For a person to become naturalized, outside of these group processes, he or she must petition for naturalization; be investigated by the Immigration and Naturalization Service; know the fundamentals of our government and history; be attached to the principles of our federal Constitution; be of good moral character; have at least two hearings; and take the Oath of Allegiance. They become citizens of the United States and the state of their residence.
An immigrant is a person who leaves one country to settle in another. This person is subject to the Immigration and Nationality Act of our federal government found in Title 8, United States Code, section 1101, et seq. The Immigration and Naturalization Service administers the federal laws relating to admission. Entrants must be inspected to determine admissibility by Immigration Judges and appeals from Service orders can be made to an administrative tribunal, the Immigration Appeals Board.
Whether by group or by individual the whole process is intended to be orderly and to serve the interests of the United States of America. It certainly has due process elements for the individual, but it is not intended to serve the person it is intended to serve the country. Once legal status has been obtained, whether permanent or temporary, certain civil rights attach to the individual. The 14th Amendment to the United States Constitution grants due process rights to a person (not necessarily a citizen) within the jurisdiction of a state which is why when an alien touches United States soil and claims asylum he or she is touching some state soil, and is granted a due process hearing on admissibility. This 1868 Amendment, meant for ex-slaves relative to state residency, has vexed officials dealing with immigration issues because an alien is a person within a state’s jurisdiction and triggers due process rights even though the person is not a citizen of America.
The whole subject is within the power of the federal, not state governments, under Article I, Section 8 of the United States Constitution: “The Congress shall have power to . . . establish an uniform Rule of Naturalization . . .” In addition, Article VI, states that the United States Constitution “and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution and the Laws of any State to the Contrary notwithstanding.”
Translated this means that all laws in any state that contradict federal immigration law are voidable as violating the supremacy clause of Article VI of the United States Constitution. Sanctuary and other laws and judicial opinions should be tested in Court against the plenary power of the federal government to determine admissibility to the United States by immigrants from other countries.
So this is the legal background. The context of immigration issues is that while we had unrestricted immigration for the first one-hundred years of our existence as a nation, we have since had controlled immigration, based on the views of Congress about the needs of the nation. Naturalization, or how one becomes a citizen, has had varying requirements but has been federal law since we became a nation in 1783 after the American Revolution. I would call us a nation of desired immigrants, not a nation of unexamined immigrants.
Why is this important? It is important because of the quality of our social order. The main value, as expressed in the Preamble to the United States Constitution, is to secure liberty to ourselves and our posterity. This means that we have a great deal of personal freedom in America and to make sure the social order remains stable, we expect a great deal of obedience to our law and individual responsibility regarding behavior in each person. We have a very unique system that depends on personal virtue as a component of a person’s character. Many persons like this liberty but it comes with duty. That is why each person who applies for naturalization is examined for moral rectitude. We do not want a police state. Those persons with criminal intentions or sociopathic disorders can cause havoc to our people and the federal government has an obligation to protect the United States from such persons entering our country through each state.
This is the context of immigration law. It is not intended to emphasize the needs and desires of the individual immigrant (with exceptions) but to emphasize the security, safety, peace and good order of the larger nation and to allow those individuals into our country who can make a contribution for the betterment of the whole. We are used to individual civil rights in America but immigration and naturalization happen to be issues that are not individual rights against the power of government but primarily the power of government to insure the “general welfare” for the entire nation. This distinction can be difficult to understand. Why Congress, who has full authority over this issue, will not act on behalf of the safety of the American people is baffling.
Copyright©2019 M.E. Boyd, Esq., Miss Constitution
