Big Head Press

L. Neil Smith's
Number 421, June 10, 2007

"Truth gets slaughtered, over and over again, every day."


Immigration Control is UN-Constitutional!
A review of U.S. Constitution & immigration history
by Dennis Lee Wilson

Credit The Libertarian Enterprise

In my article "Ask the Right Question, an interview with a Neo-LINO" [1], I made the case for immigration control being immoral and UN-libertarian. I neglected to make the point that it is also UN-Constitutional. During recent on-line discussions with a Neo-LINO, it became apparent to me that many people are unaware of the actual history of immigration in this country and are either unaware of or deliberately ignoring the fact that the Constitution does NOT AUTHORIZE the U.S. government to control immigration. Even Dr. NO, the "Constitutional" Congressman and Presidential Candidate, Ron Paul misses this point. He recently said "Immigration reform should start with improving our border protection". What happened to his oft repeated position that Congress should obey the Constitution?

Point #1: The Constitution contains NO mention of "immigration" nor does it authorize controlling it.

I cannot show you where immigration and control of it are NOT authorized, because NOWHERE in the Constitution is it even mentioned. NOWHERE! The Constitution does mention controlling of slave importation in Article I Section IX, but involuntary slave "migration" is a totally different issue that was "settled" with the end of slavery. But the founders—many immigrants themselves—were certainly not ignorant of immigration issues. Their Constitution does mention Naturalization (granting of citizenship), which is related to, but quite different from either slave importation or voluntary immigration: "Article I Section VIII: The Congress shall have Power. . . To establish an uniform Rule of Naturalization,. . ." But NOWHERE does the Constitution mention immigration or immigrants and NOWHERE does it authorize the control of immigration or immigrants. Need I remind the reader that if a U.S. government function is not specifically authorized in the Constitution, then it is prohibited by the Ninth and Tenth Amendments.

"Immigration" and "naturalization" are not the same things. Even the U.S. government recognizes that fact. Before the recent name change, the enforcing government agency called itself Immigration and Naturalization Services (INS), and the two functions are separate and distinct within the agency—even though only one of those functions is authorized by the Constitution. (I hope I don't have to explain that this is not the first or only instance of the U.S. government exceeding the limits authorized by the Constitution).

Point #2: This country somehow actually managed to survive its first 100 years WITHOUT immigration "laws", restrictions, bureaucrats, passports, green cards, permits, fences, ditches, walls, gates and armed border guards and patrols who shoot and kill Mexicans who try to enter and even those who try to leave! [4] Can you even imagine how free this country was during that first 100 years?!

The remainder of this article consists of what was readily available information [3] from U.S. government (tax funded and therefore public domain) sources.[2] The following is a brief history of Immigration Control excerpted from the government's own tax funded website. Information that I think is particularly interesting I have emphasized with bold text.

From [3]

There were few federal laws governing immigration into the United States prior to the late 19th century, and those tended to address immigration from Europe or Asia. The Steerage Act of 1819 regulated passenger travel and mandated the creation of records documenting the arrival of immigrants at seaports. Some passenger vessels arriving at United States ports sailed from Central or South America, but the majority of passenger vessels and passengers came from Europe. Not until 1891 did federal law provide for the inspection of immigrants arriving at land border ports.

Nevertheless, the Immigration Act of 1891 maintained Congress' focus on immigration from Europe. It did so by concentrating on the inspection of immigrants who arrived "by water" upon any "steam or sailing vessel." As a result, the federal Immigration Service created by the Act directed its attention to stationing Inspectors and providing facilities (such as Ellis Island) at seaports. Yet the law contained language allowing the Treasury Secretary to "prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico so as not to obstruct or unnecessarily delay, impede, or annoy passengers in ordinary travel between said countries."

It is unclear how much action the new Immigration Service took in 1891 to fulfill its mission along the southern land border. The Service may have opened as many as two immigration ports of entry along the border during 1891 or 1892, one of which was likely at El Paso, Texas. Nevertheless, in 1893, the only U.S. Immigrant Inspector present on the U.S.-Mexican Border was Leonidas B. Giles, who inspected immigrants arriving at El Paso. Unlike the majority of Immigrant Inspectors working at seaport immigrant stations, Giles' salary came from a special appropriation for enforcement of the Alien Contract Labor laws. Six years later, in 1899, there were but four U.S. Immigrant Inspectors working along the Mexican Border. They manned ports of entry at Nogales, Arizona, El Paso and Laredo, Texas, and at Piedras Negras, Mexico.

The corps of Inspectors expanded after 1900, when the Chinese Service came under control of the Bureau of Immigration. The Chinese Service pre-dated the Immigration Service, having been created by the Chinese Exclusion Act of 1882, and both previously existed as independent entities within the Treasury Department. By 1901, in addition to the already named ports, there were Inspectors stationed at Tucson, Arizona, and San Diego, California. At El Paso, Nogales, and San Diego, Chinese Inspectors augmented that force.

During these years the Border District had not yet been formally organized, nor were there any written procedures adapted to Southern Border ports. The Immigration Act of February 14, 1903, essentially re-stated the 1891 provisions concerning land borders, but called for rules covering entry as well as inspection. Following the 1903 act, Service officers began recording entries and inspecting aliens—other than Mexicans—crossing the Mexican Border. Thus while the Immigration Service was present on the Southern Border since 1892, the earliest Mexican Border Arrival Records were not created until a decade or more later.

Under a US-Canadian agreement signed in 1894, immigrants destined to the United States were inspected and recorded by US immigrant inspectors at Canadian ports of entry.

The following covers the same time period but contains additional information about INS history. The entirety of this overview was found at [3] which, of course, is also tax funded.[2]

Overview of INS History
Marian L. Smith, Historian
Originally published in A Historical Guide to the U.S. Government, edited by George T. Kurian.
New York: Oxford University Press, 1998. Reprinted with permission.

Americans encouraged relatively free and open immigration during the eighteenth and early nineteenth centuries, and did not question that policy until the late 1800s. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared that regulation of immigration is a Federal responsibility. Thus, as the number of immigrants rose in the 1880s and economic conditions in some areas worsened, Congress began to issue immigration legislation. The Chinese Exclusion Act of 1882 and Alien Contract Labor laws of 1885 and 1887 prohibited certain laborers from immigrating to the United States. The more general Immigration Act of 1882 levied a head tax of fifty cents on each immigrant and blocked (or excluded) the entry of idiots, lunatics, convicts, and persons likely to become a public charge. These national immigration laws created the need for a Federal enforcement agency.

In the 1880s, state boards or commissions enforced immigration law with direction from U.S. Treasury Department officials. At the Federal level, U.S. Customs Collectors at each port of entry collected the head tax from immigrants while "Chinese Inspectors" enforced the Chinese Exclusion Act. Congress soon expanded the list of excludable classes, and in doing so made regulation of immigration more complex. As a result, when the Immigration Act of 1891 barred polygamists, persons convicted of crimes of moral turpitude, and those suffering loathsome or contagious diseases from immigrating, it also created the Office of the Superintendent of Immigration. Located within the Treasury Department, the Superintendent oversaw a new corps of U.S. Immigrant Inspectors stationed at the United States' principal ports of entry.

Under the 1891 law, the Federal Government assumed the task of inspecting, admitting, rejecting, and processing all immigrants seeking admission to the United States. The Immigration Service's first task was to collect arrival manifests (passenger lists) from each incoming ship, a responsibility of the Customs Service since 1820. Enforcing immigration law was a new Federal function, and the 1890s witnessed the Immigration Service's first attempts to implement national immigration policy.

Congress continued to exert Federal control over immigration with the Act of March 2, 1895, which upgraded the Office of Immigration to the Bureau of Immigration and changed the agency head's title from Superintendent to Commissioner-General of Immigration. The Act of June 6, 1900, further consolidated immigration enforcement by assigning both Alien Contract Labor law and Chinese Exclusion responsibilities to the Commissioner-General. Because most immigration laws of the time sought to protect American workers and wages, an Act of February 14, 1903, transferred the Bureau of Immigration from the Treasury Department to the newly created Department of Commerce and Labor.

Attention then turned to naturalization, a duty assigned to Congress by the Constitution but carried out by "any court of record" since 1802. A commission charged with investigating naturalization practice and procedure reported in 1905 that there was little or no uniformity among the nation's more than 5,000 naturalization courts. Congress responded with the Basic Naturalization Act of 1906, which framed the rules for naturalization in effect today. The 1906 law also proscribed standard naturalization forms, encouraged state and local courts to relinquish their naturalization jurisdiction to Federal courts, and expanded the Bureau of Immigration into the Bureau of Immigration and Naturalization.

[And of course, the new bureaucracy—like any government agency—made work for itself and then created a bigger agency to "correct" the "problems" that it created. Like the Energizer Bunny, it just kept going and going. . . . DLW]

The corollary to severely restricted immigration is increased illegal immigration. In response to rising illegal entries and alien smuggling, especially along land borders, Congress in 1924 created the U.S. Border Patrol within the Immigration Service. The strict new immigration policy coupled with Border Patrol successes shifted more agency staff and resources to deportation activity.


[1] See my article "Ask the Right Question, an interview with a Neo-LINO" in THE LIBERTARIAN ENTERPRISE Number 367, May 14, 2006, or an expanded version at:

[2] Used here in accordance with Title 15, regarding tax funded work found on tax funded, government sites AND 17 U.S.C. Section 107, regarding copyrighted work distributed under fair use without profit or payment for non-profit research & educational purposes only. Ref. [this link] and

[3] The links to have apparently changed since I acquired the material. The history section is "under construction" according to this working link:
I must have saved my copies during the switch to their new name and web site—which shows the importance of copied text over "hot" links that have a nasty habit of changing or vanishing.

[4] US border guards shoot & kill an unarmed 22-year-old driver—headed FOR Mexico It has been said that A fence that is good enough to keep "them" out is good enough to keep "us" in. The link above leads to articles about the hazards and risks of getting OUT of the USA. Here are three questions to ponder: WHY do armed U.S. guards stop cars going INTO Mexico. Shouldn't that be the function of Mexican authorities? Or is it a FACT that we do actually live INSIDE a prison?)


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