“An Assessment of Immigration Federalism in the Nineteenth Century” Anna O. Law Herbert Kurz Associate Professor of Constitutional Law and Civil Liberties CUNY Brooklyn College
[email protected] Abstract: In a federal system of government, why did the U.S. national government wait until 1882 to take over control of immigration policy from the states and localities? This phenomenon is especially curious since the control of entry/exit into and across a nation’s borders is so fundamental to the very definition of a state. Is it because the American state was too weak to do so, or specifically that the national government lacked administrative capacity to handle immigration until the late twentieth century? I argue that the delay of the national government taking over immigration was not due to a lack of administrative capacity. Instead, there were regionally specific reasons that the states preferred to retain control of migration policy. In the northern seaboard states, the priority was excluding the poor, sick, and criminal, who, if admitted, would pose social and economic burdens on those states. In the South, the motivation was preserving slavery and guarding against slave insurrections. The national government could not take over migration policy until a series of political events uncoupled slavery and migration policy in the South, and the federal government assumed financial responsibility for screening poor, sick, and criminal immigrants in the North. 1 ”There can be no concurrent power respecting such a subject-matter [policies regarding freedom of movement]. Such a power is necessarily discretionary. Massachusetts fears foreign paupers; Mississippi, free negroes.” —Frederich Kapp, New York City Commissioner of Emigration1 Introduction In a federal system, who, the national government or the states and localities, regulates immigration policy? The fact that there was a tough political and legal fight over Arizona’s controversial S.B.