There has been some sharp discussion on President Barack Hussein Obama’s speech concerning the recent terrorist attack in California and his “no religious test” statement where he condemned Americans for not desiring any Syrian refugees into this country. GOP presidential front-runner, Donald Trump also made a speech which in effect would ban these refugees from entering our borders that was considered highly “un–American” by various talking heads. Let us examine who is correct, Obama or Trump per the US Constitution.
According to the Founding Fathers, the issue of immigration comes under the jurisdiction of State governments. Nowhere in Article I, Section 8 does it delegate to the federal government the power to legislate on matters concerning immigration, nor is this word to be found anywhere else in this document. This is further clarified in the Ninth and Tenth Amendments to the Bill of Rights so please pay close attention to them.
Amendment IX: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Basically, this declares that the powers of the States are too many to list.
Amendment X: “The powers not delegated to the United States by the Constitution (Article I, Section 8), nor prohibited by it to the States (Article I, Section 10), are reserved to the States respectively, or to the people.” Again as you can plainly see, since immigration was never delegated to the federal government, it is a reserved power to the several States. A reserved power means that the State governments possessed this authority both before and after the Constitution’s ratification.
A classic example of this is the fact that during the early 1800s, many Northern States would not allow free blacks to immigrate to their respective States. If these State governments possessed the authority to ban certain people to immigrate to their States then, they certainly still possess this authority in 2015 since the Constitution has not been amended on matters concerning immigration.
Religious test is in fact mentioned in Article VI, Clause 3, which states: “…but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.” This means that any person elected or appointed to office in the federal government can be of any belief they choose, whether they are Protestant, Catholic, Jewish, Atheist, or the Dalai Lama. James Madison addressed this in Federalist #52: “Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any profession of religious faith.”
Note that he did not include the States, because to do so would have invaded their sovereignty. To put it precisely, the federal government cannot impose a religious will on any of the several States that would be in direct conflict with the Bill of Rights, which places restrictions and limitations on the federal government, which these sovereign States created in 1787.
On a final note, I want to accent an important fact that the States are supposed to be in fact sovereign nations which is reaffirmed in a US Supreme Court decision, Bank of Augusta v. Earl in 1839 which declared: “The States between each other are sovereign and independent. They are distinct separate sovereignties, except so far as they have parted with some of the attributes of sovereignty by the Constitution. They continue to be nations, with all their rights, and under all their national obligations, and with all the rights of nations in every particular; except in the surrender by each to the common purposes and objects of the Union, under the Constitution. The rights of each State, when not so yielded up, remain absolute.”
One of the rights that was “not so yielded up and remained absolute” was the issue of immigration which places Donald Trump’s view more in line with the US Constitution.
Loy Mauch
The Anti-Federalist 