The Federal Government is domestically at it's most legitimate, when it exercises its powers over the states in order to enforce the Rule of Law--that is to restrains arbitrarity within the states, protectionism between them, and so on. It is at it's least legitimate, when it exercises direct power over the individuals within those states, and more still when it exercises its power arbitrarily for whatever reason--be it ideological, aesthetic, religious, tribal, etc.
The immigration question hinges not merely on whether immigration is allowed by this or that statute. It comes down to whether those statutes were consistent with the Rule of Law in the first place. Was the statute arbitrary in nature? Were any restrictions therein based on ideological, religious, aesthetic or tribal bigotry? Were there sufficient mitigating factors to prevent them from ever being applied in such a fashion by anyone of any level of power whatsoever?
If--as with our present immigration codes--there are insufficient protections at the very least, and a history of arbitrary intent as well as practice, we must accept that they are not formally within the Rule of Law. They have made a fine pretense over the years, serving the interests of the Eugenists who framed their forebears, and the demagogues who maintained the same spirit within them to the present day, but there can be no question that they break each of the restraints that the Rule of Law is to have over the popular whims of the electorate.
By whose measure are we to accept the privileged and finely educated persons of other lands who will indeed compete for chosen career paths of those citizens of those who have put their own time, and life-force on the line (and gone into great debt to gain such skills besides), but on the other hand to reject those who would perform the lowly trades for which not enough competent hands may be found locally? It can only be that such a measure is based in the whims (or rather the base aesthetic or tribal prejudices) of the populace who elect like-minded malpractitioners of the Rule of Law!
As James Madison wrote, "although aliens are not parties to the constitution, it does not follow that the constitution has vested in Congress an absolute power over them." And yet our present statutes are in practice just that--and more still, they have emboldened the lesser authority in our system--the Executive--to exercise over them the arbitrary caprice of a madman King; the very thing our system was designed to prevent!
As Madison's report of 1800 continued: "in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury." That principal continues in those jurisdictions that bear the now pejorative label of "Sanctuary." And more still sanctuary cities and states maintain the principle of local self-government, which might also be called the Federalist principle.
It is not without reason that prior to 1882 there were no Federal statutory restrictions on immigration to the United states. After all, prior to that time Eugenics was not a broadly accepted pseudo-science. And of course it is no accident that the first comprehensive immigration statute was co-authored by Albert Johnson, head of The Eugenics Research Association. And of course it is no accident that the spirit of the present codes are rooted in the same Amygdala-driven xenophobia.
The answer to any question of American immigration policy is that reform is needed indeed! And the greatest reform of all should be the removal of all statutory criteria that empower the Executive to exercise any caprice that is contrary to the Rule of Law as it is properly understood.
