The myth of 'open borders'

A federal judge recently halted an executive policy by Texas Gov. Greg Abbott, R, that would have allowed state troopers to intercept cars suspected of transporting migrant passengers. Abbott claimed that this policy was necessary to enforce immigration laws and protect the state from the spread of the coronavirus. The Department of Justice intervened, however, because immigration policy is supposed to be under the purview of the federal government. As this shows, a battle is playing out in surprising ways between states and localities and the federal government about who has the power to control immigration policy.

It's the revival of a much older debate about where this power rests. Today the national government has definitive authority to manage the entry and exit of people who cross national borders. But it was not always this way. For almost a century, from the country's founding until 1882, the states and localities had control. And the history of state and local control over immigration is deeply rooted in a Constitution — and federal system — that was indelibly shaped by slavery.

Immigration is not the only issue to generate confusion and debate about the division of power. The United States has a federal system of government where different levels of government must share power. And while the Constitution established a blueprint saying so, the details have had to be filled in over time. The location of the dividing line between the authorities of the two levels of government, which government has responsibility over a policy area and when the national government gains exclusive control, has been decided by the politics of every era.

Enslavers greatly influenced the compromises in the Constitution. Enslaver interests worked to sharply delimit the boundaries of federal authority over slavery and to secure assurances that slavery would remain under local rather than national regulation. One way this goal was accomplished was to divide policy areas by subject matter jurisdiction. Southerners insisted that slavery was to be a state and local matter, striving to confine national power to foreign policy, commerce, defense and finance.

The division of labor over policy areas was underwritten by the "police powers" doctrine that derives from the Tenth Amendment of the Constitution. Under this doctrine, any policies regarding health, safety and morals were designated to local control. Southern and northeastern states each had their own regional interpretations of what "police powers" encompassed. Before the Civil War, these states interpreted these powers quite differently, depending on their individual state's needs.

The federal government had little power to regulate people's migration and movements — whether from other states or foreign territories — because doing so constituted a threat to slavery in the South and a threat to the northeastern states defending against the entry of large numbers of poor, sickly or disabled migrants.

For example, eight slave states between 1822 and 1857 claimed the authority to regulate the entry and movement of free Blacks, including free Black sailors from foreign and domestic ships arriving in southern harbors. These restrictions that they imposed, they alleged, were out of concern that free Black people were "moral contagions" who would intermix with the enslaved population and foment insurrection. By 1857, all the coastal slave states from South Carolina to Louisiana to Florida had laws authorizing the arrest, incarceration and sometimes sale into slavery of foreign and domestic free Black sailors. The South viewed these laws — in a sense, migration control laws — as rooted in the constitutional police powers and necessary for states to preserve public safety and internal security.

Northeastern seaboard states that received the largest share of arriving international migrants in the 19th century had a different set of concerns. Although the colonies and early republic states desired migrants to occupy and work the land, they did not want "unproductive" migrants. Before there were publicly funded welfare programs, caring for indigent, sickly and disabled people often became the financial responsibly of the jurisdiction (town, municipality, county) where people lived. Northeastern states asserted their right under police powers and self-preservation to protect from the economic and social costs of caring for people — particularly new arrivals — that they argued would pose burdens.

Continuing a practice that began in the colonial period, states like New York and Massachusetts required arriving ships to "manifest" or report the physical condition of passengers to the state. They also required bonds and head taxes be paid for "at risk" migrants — those deemed likely to cost the state money, or what was termed "likely to become a public charge," a term that still exists in different forms in contemporary immigration law.

For almost a century, northeastern and southeastern states, rather than the national government, determined who could enter and stay in their geographical borders. States could deport the poor — whether native or foreign born. They could prevent and expel the poor from entering their jurisdiction, or impose administrative burdens to enter, stay and move freely in the state.

The national government was not able to wrest away and consolidate migration controls from the states until after the Civil War, when Southern states no longer needed to fight to regulate people's movements to uphold slavery. For the northeastern states, Supreme Court rulings invalidated the ability of states to collect head taxes or bonds on arriving immigrants to defray the cost of caring for them. In a trio of cases beginning with The Passenger Cases (1849), Chy Lung v Freeman (1875) and Henderson v Mayor of New York (1876), the Supreme Court voided New York and Massachusetts head taxes and bonds.

With the primary instruments of the northeastern seaboard states' efforts to protect themselves from the ills of mass migration gone, these states clamored for national government reimbursement to regulate poor, sickly and disabled migrants. Their wish was granted in 1882 when the national government passed a federal immigration head tax.

The year 1882 also saw the passage of the federal Chinese Exclusion Act, which marked the transition of immigration policy to exclusive national control. The Reconstruction Amendments, the 13th, 14th and 15th, ratified between 1865 and 1870, had decisively swung the balance of power overall from the states to the national government and had placed national citizenship above state citizenship. These two moves allowed the federal government to prevent local restrictions on the freedom to move and to remain.

On Aug. 31, 2021, the official account of the Immigration and Customs Enforcement agency ("ICE") tweeted, "While many may think ICE is a relatively young agency, tying its origins to the events of 9/11, its history traces back to when the nation's Founding Fathers were establishing the blueprint for the newly created United States of America." But, of course, there was no national control over immigration in the antebellum period because the states would not allow it.

Recalling what motivated states to restrict movement at their borders in the first place — to exclude people deemed undesirable in the northeast and to protect the institution of slavery in the south — helps debunk the persistent myth that the U.S. borders were open before national regulation, and prompts us to ask whose interest is being protected by restrictions.

Anna O. Law is Herbert Kurz Chair in Constitutional Rights and associate professor of political science at CUNY Brooklyn College.