These 16 quotes prove America can exclude or deport any immigrant … for any reason
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16 quotes prove America can deport any immigrant … for any reason

When will our political and legal establishment recognize this historical fact?

Posted January 31, 2017 12:00 AM by Daniel Horowitz American flag blue sky
Mike Mozart | flickr
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The ubiquitous notion among the political and legal establishment that there are any constitutional limitations on our sovereign right to exclude any immigrant for any reason is the most dangerous constitutional crisis we are facing in the coming months. It is one of the reasons why I wrote “Stolen Sovereignty“— as a reminder of our history, traditions, and laws on immigration and sovereignty.

Based on 200 years of case law, the accepted laws of nation states, and the principles of the social compact, popular sovereignty, and jurisdictional sovereignty, the American people — as expressed through their elected representatives — have the right to exclude or deport any non-citizen for any reason. The prudence of such a move is a political question best dealt with by the political branches of government depending on the situation at hand. But the courts have absolutely no ability to force the political branches to allow aliens to remain in this country against statutes passed by Congress. There is no due process for aliens to remain in the country in the same way non-citizens have full due process when facing jail time or indefinite detention. That is the most settled area of law. Even those who aren’t politically comfortable with exercising this power to the max must concede that it is a dangerous proposition to cede the legal right to exercise that power. 

To drive home this point, I gathered together from my book and other research 16 quotes from early legal scholars, founders, and case law demonstrating once and for all that the legal question of sovereignty is not up for dispute. Everything else is a political or philosophical question left to the political arena and ultimately settled through national elections:

The importance of sovereignty and the right of the people through Congress and executed by the executive branch to exclude anyone  

1)  “Every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there can be room for no complaint.” - Gouverneur Morris (believed to be primary author of the actual prose of Constitution) Constitutional Convention in 1787[1])

2)  “In a republic the sovereignty resides essentially, and entirely in the people. Those only who compose the people, and partake of this sovereignty are citizens, they alone can elect, and are capable of being elected to public offices, and of course they alone can exercise authority within the community: they possess an unqualified right to the enjoyment of property and personal immunity, they are bound to adhere to it in peace, to defend it in war, and to postpone the interests of all other countries to the affection which they ought to bear for their own.” [2]

3)  “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.” [3]

4)   “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” [4]

5)   “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.” [5]

6)   “Self-preservation is the highest right and duty of a Nation.” [6]

That the same right to exclude applies to the right to deport those who are in conditional status and have not become citizens

7)   “The right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.” [7]

8)  “[A]ny alien coming to this country must or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to, and consequently, whatever [risk] he may incur in that capacity is incurred voluntarily, with the hope that in due time by his unexceptionable conduct, he may become a citizen of the United States.” [8]

9)  “Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury … Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates.” [9]

That courts have no jurisdiction to admit aliens or block deportations executed pursuant to statute

10)  "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." [10]

11)  “[T]he decision to admit or to exclude an alien may be lawfully placed with the [p]resident, who may in turn delegate the carrying out of this function to a responsible executive officer … The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” [11]

12)  “This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens.” [12]

That there is no constitutional due process right for aliens to enter or remain in the country (as there is for criminal punishment) other than what Congress prescribes

13)  “As to such persons [non-citizens wishing to remain in the U.S.], the decisions of executive or administrative officers, acting within powers expressly conferred by [C]ongress, are due process of law.” [13]

14)  “As to the extent of the power of Congress under review, there is not merely "a page of history,"… but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government … that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation. We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens…” [14]

15)  “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” [15]

Making a clear distinction between the power of Congress to deport or temporarily detain aliens without court intervention and indefinite detention or punishment, which requires due process

16)  “No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation unless provision were made that the fact of guilt should first be established by a judicial trial….Detention or temporary confinement as part of the means necessary to give effect to the exclusion or expulsion was held valid, but so much of the act of 1892 as provided for imprisonment at hard labor without a judicial trial was held to be unconstitutional.” [16]

In many of the aforementioned cases, the justices noted at the time that the application of some of these laws — especially the retroactive deportations of those already granted legal status — was harsh. But at the same time, they conceded that such a determination is left to the political branches of government. At its core, the case law on questions of exclusion and deportation reflect the quintessentially proper role of the courts. This is exactly why federal judges are not elected and serve life tenure. Not so they can create new constitutional rights and settle political issues. That is why we have elections. They are not elected because they are tasked with applying the letter of the law to its fullest, even in the harshest situations that would engender political backlash or mass protests.

As Mark Levin has observed in “Men in Black,” “Judges are appointed for life because they’re not politicians. And because they’re not politicians, they’re not directly accountable to the people and are not subject to elections.”



[1] "Debates in the Federal Convention of 1787," Elliot's Debates, Vol. V, as republished on the Teaching American History website, http://teachingamericanhistory.org/ratification/elliot/vol5/0809_1787/

Morris’s importance as a founder is best captured by Madison’s claim that the actual text of the Constitution “fairly belongs to the pen of Mr. Morris.” Max Farrand, “The Framing Of The Constitution Of The United States”.

[2] William Rawle A View of the Constitution of the United States of America. 2d ed. (Philadelphia: Philip Nicklin, Law Bookseller, 1829) 85-86

[3] Chief Justice John Marshall, The Exchange v. McFaddon, 11 U.S. 136 (1812)

[4] Nishimura Ekiu v. United States, 142 US 659 (1892)

[5] Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889)

[6] Kansas v. Colorado, 206 U.S. 46, 57 (1907)

[7] Fong Yue Ting v. United States, 149 US 707 (1893)

[8] Justice James Iredell, 9 Fed. Cas. 826, no. 5,126 C.C.D.Pa. 1799

[9] Emer de Vattel, Vatt. Law Nat. lib. 1, c. 19, §§ 230, 231, the noted Swiss expert on international law quoted by our founders and early case law.

[10] Lem Moon Sing v. United States, 158 U. S. 547 (1895)

[11] Knauff v. Shaughnessy, 338 U.S. 543 (1950)

[12] Fiallo v. Bell, 430 U.S. 792 (1977)

[13] Lem Moon Sing v. United States, 158 U.S. 538 (1895)

[14] Justice Frankfurter, Galvan v. Press 347 US 531–32 (1954)

[15] Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting)

[16] Turner v. Williams 194 U.S. 279, 291 (1904); Scalia cited this case and its clear distinction as settled law in 2001: Zadvydas v. Davis 533 US 678 (2001) (Scalia, J., dissenting) at 704.