CONSTITUTIONAL CONVERSATIONS
Immigration in Context (cont.)
by
M.E. Boyd, Esq. “Miss Constitution”
Last week I discussed the general premises of immigration law and the plenary authority of Congress relative to the issue. It is a national issue of the greatest importance to the future of the country and the stability of the social order of the United States. Full authority for the issue is Constitutionally granted to Congress under Article I, section 8 with a myriad of executive branch agencies attempting to faithfully execute Congress’s will on the matter. The problem is Congress’s will on the matter is at best uncertain. I would encourage each of you to study the various authorities and laws relative to legal and illegal immigration by going to law.cornell.edu. This is the best site for non-partisan explanations of federal law. Go to supremecourt.gov for the various attempts of the Supreme Court to hack away at the complex issues surrounding immigration and which branch of the federal government has authority to act in particular situations.
The purpose of this short column is to give you a broader overview and understanding of the situation that has been a front and center issue since America entered the world stage in a meaningful way at the early part of the 20th century. First, the very decision to enter the world stage in a meaningful way began with the Spanish-American war and our occupation of the Philippines and other territories. World War I sealed it. These decisions were hotly contested at the time and vigorously debated by the public but the decision was made and it became a turning point for our country. The revolution is Russia, both World Wars, the Great Depression of the late 1920’s, created unstable populations all over the world. America kept a tight quota system regarding immigration and favored those immigrants from western-Europe who, it was thought, would learn English and assimilate more easily into our society. It was a very limited number as a percentage of the population.
Of primary importance to Congress at any given time was the effect of certain immigrant groups on nature of our social order and this is reflected in the myriad of Acts relative to immigration beginning in the 1880’s. The single male Chinese immigrant who had helped build the railroads in America was subsequently excluded in 1882 as, in part, detrimental to the stability of the family. There are many Acts of Congress beginning in 1917 reflecting various views of immigration. The biggest change, and the one affecting us today, is the Hart-Celler Act –1965, that abolished the quota system and limited immigration from the western hemisphere. This Act grew out of the civil rights movement of the time as an ashamed Congress and President considered our immigration policies racist. New emphasis was placed on immigrants from Asia, Africa, and the Middle East. Family re-unification became a priority. We have had several new versions since then but more importantly, the percentage of immigrants relative to our total population has dramatically increased. This is the background regarding legal immigration. An individual must still apply for citizenship and go through an examination process to become a naturalized American citizen. He or she swears to support and defend the Constitution and the laws of the United States and bear true faith and allegiance to the same. Even so, it takes time for many naturalized citizens to become fully assimilated into American society as our philosophy, laws, and culture are very unique – not to mention the difficulty learning English.
The current issue involves illegal immigration and is an entirely different matter altogether. This is now not the long-term decisions of Congress relative to the proper mix of our society but a law enforcement and public health and safety issue of the highest order. Congress’s plenary authority is now shared with the Executive branch’s authority regarding national security under Article II of the Constitution. Part of the examination process for legal immigrants is determining whether an individual is altogether inadmissible to the United States under any circumstances. You may find the reasons for inadmissibility in Title 8, United States Code, section 1182. Among the many reasons: certain diseases our public health officials do not want in the country; terrorists; harvesters of body parts for sale; known drug and sex traffickers; etc. etc. When large groups simply surrender themselves at the border it is very difficult to examine properly those inadmissibility features that would bar admittance or deal with presented public health issues that represent an immediate concern for both the individual and the population as a whole.
Added to the challenges for American authorities regarding illegal immigration is the 14th Amendment to the United States Constitution: “[n]or shall any State deprive any person of life, liberty, or property, without due process of law; no deny to any person within its jurisdiction the equal protection of the laws.”
What this means is that when a person touches the soil of a state in the union he or she must be given due process rights and equal protection of the laws. It is these due process hearings that are backed up for years. By releasing persons who have entered the country illegally into our society as they await their due process hearings we may be releasing persons who would otherwise be inadmissible under Title 8, USC, section 1182. This is a most perplexing issue for authorities as they struggle to conform to the mandates of the United States Constitution at the same time they have duties to assure the health and safety of American citizens.
I encourage all of you to further examination and study of the laws and Supreme Court opinions regarding these issues. The above is a most generalized overview. The overarching premise is that all immigration is first and foremost for the benefit of the United States of America and not for the person or persons seeking admittance with certain emergency exceptions.
Copyright©2019, M.E. Boyd, Esq., “Miss Constitution”
