The coming clash between President Obama and Congress over immigration promises to light up what I like to call a constitutional moment. This is a moment in which our politics are so divided that we have scraped away the soil of legislation and are fighting on American bedrock. Rarely has it shone more clearly than in respect of who has the power to decide who can come here and be naturalized as a citizen.
This is one of the reasons we seceded from Great Britain. King George III had been interfering with immigration to the colonies. It was one of the complaints enumerated in the Declaration of Independence. The British tyrant, the Americans declared, had endeavored “to prevent the Population of these States.” For that purpose, they said, George III had been not only “obstructing the Laws for Naturalization of Foreigners” but also “refusing” laws “to encourage their Migrations hither.”
The articles of confederation that first bound the newly independent states failed to solve this problem. Each state set its own policy on naturalization, with the potential for chaos. Hence the founders, who gathered in 1787 in Philadelphia to write the Constitution, granted to Congress the power to “establish an uniform Rule of Naturalization.” They could have granted this to the President or left it to the states, but they assigned it instead to Congress.
So Obama, in threatening to act on his own, is playing with constitutional fire. It’s not that I object to his liberality on immigration. On the contrary, for years I was part of the Wall Street Journal’s editorial page. It reckons that it would be illogical to stand for the free movement of trade and capital absent the free movement of labor. It once called for a constitutional amendment saying “there shall be open borders.”
That is based on the idea of human capital, the notion that in a system of democratic capitalism people have an incentive to produce more than they themselves consume. This system discovers that more people lead to a richer society for all. In my generation, this point animated the campaign for America to take in the boat people escaping Vietnam after the communist conquest. What a windfall they turned out to be.
I have also long plumped for a merger of pro-immigration activists and pro-life conservatives. A movement that cherishes pro-life principles contradicts itself when it emerges against immigration. Better to press consistently for the idea that more people are better, particularly in a country as underpopulated as the U.S., which ranks near the bottom of the world’s nations in population density.
All that, though, is trumped by the constitution. It not only seats naturalization power in Congress but also gives it almost total sway. The founders discussed adding language relating to how long someone must reside in America before becoming a citizen. In the end they required of Congress only that its rule be “uniform.” They didn’t want the states feuding over this and setting competing policies. They wanted a united front to the world.
Nor, the record suggests, did they want the President setting policies on immigration and naturalization. There may be talk about Obama having presidential “discretion” in enforcing immigration laws, but the record of the Constitutional Convention makes clear where the founders wanted discretion to lie. “The right of determining the rule of naturalization will then leave a discretion to the legislature,” James Madison quotes Alexander Hamilton as saying.
Madison followed by remarking that he “wished to maintain the character of liberality” that had been “professed” throughout the states. He was not for open immigration. He “wished to invite foreigners of merit and republican principles among us.” He noted that “America was indebted to emigration for her settlement and prosperity” and added, “That part of America which had encouraged them most had advanced most rapidly in population, agriculture, and the arts.”
The Founding Fathers were not naive. They worried plenty about intrigue by what Madison, at one point, called “men with foreign predilections” who might “obtain appointments” or even seek public office. One can imagine that they would be horrified by the loss of control of the southern border, the lawlessness, the abuse of welfare and the scent of rebellion north of the Rio Grande. But the founders also feared a King–or a President who acted like one. They wanted the question of immigration settled by Congress and wrote an impeachment clause that glints in the fray.
Lipsky is the editor of the New York Sun
SOURCE: The Writings of James Madison, Volume IV
This appears in the December 01, 2014 issue of TIME.