How the Federal Government Came to Control Immigration Policy and Why it Matters

The Civil War and Reconstruction transformed immigration policy in the United States, marking the transition from a sub-national to a national policy for regulating the admission, exclusion, and removal of foreigners. Before that turning point, Congress played almost no role in regulating immigration, other than naturalization policy (for white people) and passenger acts setting conditions on ships. The Civil War eliminated some of the worst abuses of the old state-level system. Ironically, however, the newly empowered federal state created during Reconstruction could restrict immigration much more comprehensively than any state—as Chinese laborers soon discovered to their detriment.

In the era of slavery, states and towns used their police power to control mobility within and across their borders and set their own rules for community membership. In the Northeast, states and cities imposed taxes and bonds on foreign paupers. Ship captains passed along the cost to passengers in higher fares. Local jurisdictions deported the poor out state and sometimes overseas. In the Old Northwest (today’s Midwest), state and territorial governments used bonds and taxes to exclude and monitor free Black people. Southern states policed the movement of African Americans, both free and enslaved, and passed laws imprisoning black sailors visiting from other countries and from other US states.[1]These local measures rested on the states’ sovereign power to regulate their internal affairs. Insofar as they affected foreigners, they constituted the immigration policy of the United States in the antebellum era.

When it came to regulating mobility before the Civil War, local police power prevailed over federal commerce power. Defenders of slavery supported fugitive slave laws but resisted any other form of federal authority over mobility across and within their borders. If Congress had the power to control immigrant admissions, they feared, it could potentially use that power to  control the movement of free black people and perhaps even the interstate slave trade.Migration, in other words, presented a political and constitutional problem in a slaveholding republic.[2]

The Civil War, with the secession of eleven states from the Union and the abolition of slavery, removed the political and constitutional obstacles to a national immigration policy. Yet, in the absence of slavery, Congress would not have regulated—let alone restricted—immigration earlier. Even though the abolition of slavery cleared a path for the emergence of a national immigration policy, in other words, it did not make that policy inevitable.

Nobody before the end of the nineteenth century, not even the Know-Nothings in the 1850s, wanted to restrict European immigration numerically. Some nativists in the antebellum era called on Congress to extend the waiting period for naturalization, or to regulate migration by paupers, but to no avail. When the Supreme Court invalidated the immigration laws of New York and Massachusetts as violations of the Commerce Clause in Henderson v. New York(1875), state officials responded by demanding, crafting, and implementing a new federal law. The Immigration Act of 1882—the first general immigration law in US history—followed the model  set by the states, imposing a head tax on all passengers and excluding the most vulnerable. Yet admission was the norm for European immigrants throughout the nineteenth century, and it remained so until the 1920s.[3]

Chinese immigrants fell into a different category. In Chy Lung v. Freeman, decided simultaneously with Henderson in 1875, the Supreme Court invalidated a California immigration law taxing Chinese immigrants. A short-term victory for those who challenged the law, Chy Lung also signaled that Congress could exclude foreigners much more effectively than any state. Anti-Asian restrictionists pressured Congress to pass the Chinese Exclusion Act in 1882, which discriminated on grounds of race and class by barring Chinese laborers from entering the United States for ten years. The era of national immigration control was underway.[4]

It was at this time, also, that immigration came to be defined as a matter of national security In Chy Lung, the Court noted pointedly that allowing “a single State” to make determinations regarding entry and removal would allow that state to “embroil us in disastrous quarrels with other nations.” In Chae Chan Ping v. United States (1889)—better known as the Chinese Exclusion Case—the Court moved beyond the commerce power and ruled that authority to control immigration was inherent in national sovereignty. “Every nation, to preserve its independence, had to guard against “foreign aggression and encroachment,” Justice Field wrote in Chae Chan Ping. It did not matter whether the threat came from the actions of a foreign nation “or from vast hordes of its people crowding in upon us.”[5]

In Chae Chan Ping, the Supreme Court assigned power over immigration to the “political branches” of the federal government—Congress and the executive—which could admit or exclude foreigners as they saw fit, with minimal interference by the courts. On the basis of this plenary power, rooted in Chinese exclusion, the national government has since controlled US immigration policy as, in the first instance, a matter of national security.[6]

States and cities today can no longer determine whom to admit, exclude, or deport from the country. Any attempt to do so intrudes on federal power, as established by 150 years of law. But local jurisdictions can and obviously do continue to regulate immigrants’ lives after arrival. Many of them support federal immigration policies, cooperate with national agencies such as the Immigration and Customs Enforcement (ICE), or call for more restrictive and punitive laws. Texas’s recent SB4 law has precedents in California’s Proposition 187 (1994) and Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070) (2010). Measures like these deliberately blur the lines of authority and seek not just to regulate immigrants within states but to deter immigration per se.[7]

Justice Antonin Scalia, dissenting in Arizona v. U.S. (2012), pointed approvingly to the antebellum laws “restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.” As a sovereign state, Scalia claimed, Arizona had “the inherent power to exclude persons from its territory.” The majority disagreed and struck down most of SB 1070’s provisions, though they upheld the power of state police to investigate immigration status.[8]

While states and cities cannot defy federal immigration law, neither can the federal government order them to participate in enforcing that law. Many local jurisdictions today seek not to monitor or expel immigrants but to integrate them and protect them from federal surveillance. There are clear echoes here of the personal liberty laws of the antebellum era, which operated as a state-level counterweight to oppressive national power.

The real counterweight in the nineteenth century, however, came from the opposite direction. The Civil War and Reconstruction decisively tilted the balance of power away from states toward the federal government in the name of racial justice. Although Chinese immigrants remained ineligible for US citizenship, their American-born children were birthright citizens under the Fourteenth Amendment. That amendment also extended equal protection and due process not just to citizens, but to all legally resident persons under the jurisdiction of the United States, including unnaturalized immigrants. The expanded federal government that protected these new rights, however, also secured control over immigration policy and proceeded to regulate and restrict immigration to an extent beyond the reach of any individual state.

[1] Hidetaka Hirota, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy (New York: Oxford University Press, 2017); Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (New York: Norton, 2021); Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America (New York: Cambridge University Press, 2019).

[2] Kevin Kenny, The Problem of Immigration in a Slaveholding Republic: Policing Mobility in the Nineteenth-Century United States (New York: Oxford University Press, 2023).

[3] Henderson v. Mayor of City of New York, 92 U.S. 259 (1875); Kenny, Problem of Immigration in a Slaveholding Republic, 112–20; 191–93, 205–06; Hirota, Expelling the Poor, 181, 184–92; Mae M. Ngai, Immigration and Ethnic History (Washington, D.C.: American Historical Association, 2012), 4.

[4] Chy Lung v. Freeman, 92 U.S. 276 (1875); Kenny, Problem of Immigration in a Slaveholding Republic, 193–94; Texas Senate Bill No. 4, An Act Relating to the Enforcement … of State and Federal Laws Governing Immigration (2017). In March 2024, US Solicitor General Elizabeth B. Prelogar cited Chy Lung in her argument before the Supreme Court seeking to block Texas’s SB 4 law, which criminalizes unauthorized entry into the United States. Mexico’s Ministry of Foreign Affairs made the same point about the danger of individual states controlling national borders in a press release on March 19 responding to the Supreme Court’s refusal to block SB 4.

[5] Chy Lung v. Freeman, 92 U.S. 276 (1875); Chae Chan Ping v. United States 130 U.S. 581 (1889).

[6] This plenary power doctrine provided the basis for a national immigration policy in the United States. In Trump v. Hawaii (2018), the Court upheld the so-called travel ban on Muslim immigrants based on the precedent set in Chae Chan Ping 120 years earlier.

[7] California Proposition 187, Illegal Aliens Ineligibility for Public Benefits Verification and Reporting Initiative Statute (1994); Arizona SB 1070, The Support Our Law Enforcement and Safe Neighborhoods Act (2010).

[8] Arizona v. U.S. 567 U.S. 387 (2012).