Before Ellis Island, the States Ran Immigration and the Court Stopped Them

Ask an American where immigration began and he will say Ellis Island. It is a fine answer, as far as it goes, and it leaves out about a century. Ellis Island opened in 1892. For the better part of the hundred years before that, the officials who greeted a ship from Liverpool or Le Havre were not federal at all. They worked for New York, or Massachusetts, or Louisiana, or California. The nation had a border and no border service.

That odd arrangement is worth a close look, because it is the clearest example in our history of a question conservatives care about a great deal: which level of government is supposed to do what. The states ran immigration for a long time, they did it badly in some places and abusively in others, and the Supreme Court finally decided that the subject belonged to the national government. The story teaches something about federalism, and it teaches something about borders, and the two lessons turn out to be the same one.

How the States Came to Run It

Start with the early republic. The Constitution gave Congress the power over naturalization and the power to regulate commerce "with foreign Nations, and among the several States, and with the Indian Tribes." It said nothing explicit about the entry of foreign passengers. The first Congresses passed laws on naturalization and a few on shipping, and for a time they left the arrival of ordinary passengers alone, with one exception: the Alien Friends Act of 1798, which expired in 1800.

The gap was filled by the states. Port states faced the practical problems of immigration at first hand. Ships arrived crowded and sometimes diseased. Passengers who could not support themselves landed in the city and, if poor, fell on local charity. So the legislatures of the port states passed laws of their own. They required ship captains to report the names and conditions of their passengers. They required quarantine for sick arrivals. And, most commonly, they required the shipowner to post a bond guaranteeing that the passengers would not become public charges, or to pay a fee per passenger, called a head tax, to fund hospitals and relief.

The authority the states claimed was the police power: the traditional authority of a state to protect the health, safety and welfare of its people. In a decision called City of New York v. Miln (1837), the Supreme Court upheld a New York law that required the master of a vessel to report information about every passenger. The Court treated the law as a regulation of persons, not of commerce, and therefore within the state's police power. That decision gave the states a green light, and they used it.

Castle Garden

The best example is New York, the nation's busiest port. In 1855 the state opened an immigrant landing depot at Castle Garden, a former fort and theater at the tip of Manhattan. For several decades, it was the front door of America. A state commission ran it. Officials examined arrivals, kept records, provided some help with lodging and employment, and tried to protect newcomers from the swindlers who waited at the docks. The state funded the enterprise largely out of a head tax on arriving passengers.

I want to be fair to Castle Garden. It was not a cruel institution, and in its early years it was a serious attempt to bring order to a chaotic flow. A state that took in hundreds of thousands of people had a real interest in how they arrived. But the same system carried real defects: it varied from port to port, it burdened some ships and not others, and its power was open to abuse by officials who answered to a state and not to the nation. And it raised, from the start, a constitutional problem.

The Problem

Think about what happens when a state taxes the arrival of foreigners. The people on the ship are coming from another country. The ship is engaged in international commerce. The state tax lands on that commerce. Under the Commerce Clause in Article I, Section 8, Congress has the power to regulate commerce with foreign nations. If each port state could tax and regulate arrivals as it pleased, the United States would have as many immigration policies as it had ports, and a state with high taxes would drive ships to the next port. The Union was meant to prevent that, and the Constitution says that in Article I, Section 10, no state may lay duties on imports or exports without the consent of Congress, except what is absolutely necessary for executing its inspection laws.

The Court first wrestled with the problem in the Passenger Cases of 1849. New York and Massachusetts had passed laws taxing arriving passengers, and the shipowners challenged them. In Smith v. Turner and Norris v. City of Boston, the Court struck down both laws by a narrow vote, five to four. But the justices were badly split. Many of them wrote separate opinions, and they could not agree on a single rationale. Some thought the head tax was a regulation of commerce that belonged to Congress, and some thought it was an invalid tax on commerce for other reasons. Chief Justice Roger Taney dissented, in a vigorous opinion defending the states' power to protect themselves against paupers and disease.

The result was a decision with a strong conclusion and a muddy reason. The states lost the case and kept most of their confidence. They changed the details of their laws and continued, and the question stayed alive for another generation.

Henderson and Chy Lung

The Court finally settled the matter in 1876, in two decisions handed down the same term, both with Justice Samuel Miller writing.

Henderson v. Mayor of New York arrived together with a Louisiana case on the same subject. New York law required the owner of a vessel arriving from abroad to post a bond for each passenger or pay a fixed sum for each one, to indemnify the state against the passengers' becoming public charges. The shipowners sued. The Court held the law unconstitutional. The subject, it said, is one of foreign commerce, which the Constitution places in Congress. A state could not regulate it, even for a legitimate purpose like protecting its treasury, because the regulation fell on the very thing the Constitution had assigned to the national government. The Court left open whether a state may protect itself against actual paupers, criminals or diseased persons. And the reason went beyond text. The Court said that this is exactly the sort of subject on which the nation must speak with one voice, because the consequences of a state's action fall on the whole country and on the country's dealings with other nations.

Then, in the same term, came Chy Lung v. Freeman, and it is the better story. California had passed a law that gave the state's commissioner of immigration the power to demand a bond from the master of any ship carrying certain classes of passengers, including "lewd and debauched women." If the shipowner did not post the bond, the passengers could not land. In practice, the law was used against Chinese women arriving at San Francisco. Officials demanded large sums, and the shipowners paid, because the alternative was to be stuck with the passengers. The law, the Court saw, was an instrument of extortion.

Miller was blunt. A single state, he wrote, could not be allowed to hold the whole nation hostage on a subject of foreign relations. If a California official insulted a foreign government by his handling of its subjects, the nation would pay for it, and California would not. The Court struck the law down and gave an exact reason: the power to control who enters the country, and on what terms, cannot be left to the states, since a mistake by one of them could embroil the whole United States in a dispute with a foreign power.

Congress Acts

The Court's decisions left a hole. If the states could not regulate immigration, and Congress had not, then no one was doing it. Congress filled the hole in two stages.

The Immigration Act of August 3, 1882, was the first general federal immigration law. It imposed a head tax of fifty cents on each arriving immigrant, a tax paid into a fund to care for arrivals, and it barred the entry of convicts, lunatics, idiots and any person likely to become a public charge. Because the federal government had no immigration service, the law worked through the states: the Secretary of the Treasury made agreements with state boards, among them New York's commissioners at Castle Garden, to carry out the inspection. The state officials who had run the system for years now ran it as agents of the nation.

The Immigration Act of March 3, 1891, completed the job. It created the Office of the Superintendent of Immigration in the Treasury Department, assigned federal inspectors to the ports, expanded the classes of people to be excluded, adding persons with dangerous diseases, polygamists and others, and made the inspection of arriving immigrants a federal function. Castle Garden closed in 1890, and in 1892 the federal station on Ellis Island opened. The nation had a border service at last.

What the Shift Teaches About Federalism

Here is where I want to press the point, because it is the lesson that matters for the present.

One. Federalism is not a blanket rule that the states should do everything. The Constitution assigns some subjects to the states and some to the nation, and the test is what the subject is. Immigration, which affects foreign relations, foreign commerce and the question of who belongs to the nation, falls on the national side. The Court said so in 1876, and the reasoning still holds. For the broader theory, see Federalism Lets Fifty States Experiment, and the Constitution Planned It.

Two. A national border means a national rule. The states' experiment with local control produced exactly what the Founders feared in the Articles of Confederation: a patchwork, with one state's decisions pushed onto its neighbors. The remedy for the patchwork in naturalization, discussed in One Uniform Rule, How the First Congresses Wrote America's Naturalization Laws, was the same.

Three. The states did not lose all their interest. They bear the costs of arrivals, in schools, hospitals and prisons, and they have a legitimate voice. But the proper way to use that voice is to press Congress and the president, to cooperate with federal officers, and to use the powers states actually have. They may not write their own immigration code. For the reasoning on schooling costs, see Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made.

Four. The nineteenth-century story should give pause to anyone who proposes that states take over border control today. The states tried it. They taxed ships, extorted shipowners, applied rules unevenly and produced diplomatic trouble. The Court and Congress then did what the Constitution suggests: they moved the job to the level of government that answers for the nation's foreign relations. If today's federal government fails at the job, the answer is to fix the federal government, not to reinvent Castle Garden.

The Other Side

A fair opponent might reply that the argument proves too much. The states had the police power, the health and safety of their people were at stake, and the federal government was slow to act. A state facing a surge of arrivals, whether in 1850 or now, has a legitimate interest that the nation may neglect.

That is true, and it is why the comparison is a limited one. The conservative answer is not that states are powerless. They have real tools: quarantine, health laws, enforcing their own criminal law, cooperating with federal officers, and speaking up in Congress. What the Court held, and what the Constitution supports, is that the power to decide who may enter belongs to the national government. A state's interest in the consequences is real. It is not a substitute for the national power.

The case in brief

1. For most of the nineteenth century the port states, led by New York at Castle Garden, screened and taxed arriving passengers under their police powers, with the Court's blessing in City of New York v. Miln (1837).
2. In the Passenger Cases of 1849 the Court struck down state head taxes by a bare majority but without a clear rationale, and the practice continued in altered form.
3. In Henderson v. Mayor of New York and Chy Lung v. Freeman, both decided in 1876, the Court held that regulating immigration belongs to Congress under the commerce power and that states cannot use it, even for extortion.
4. Congress built a federal system in the Immigration Act of 1882 and the Act of 1891, culminating in the opening of Ellis Island in 1892.
5. The lesson of federalism is that some subjects, including who may enter the country, belong to the nation, and the right response to federal failure is to fix the federal government.

What you can do: read Article I, Section 8, Clause 3 and Article I, Section 10 on the Constitution page, then ask your state legislators what a state can lawfully do about the costs of immigration and what it must leave to Congress.