Legalities of Immigration

Dear Readers: Texas Governor, Greg Abbot, is shipping foreign migrants to “blue” parts of the country as an attempt to have a “Texas-take” on immigration, giving them a “free” ride across the country at Texas-tax payers’ expense. Previously, he had made a show of increased and costly truck inspections at crossings from Mexico. New Mexico has tried to capitalize by pitching Santa Teresa as a more attractive hub for Mexico-United States commerce from Texas cities; which illustrates immigration is a national issue with state consequences. Let’s take a deeper dive.

There are two distinct classes of resident peoples – citizens and natural persons. The “citizenship clause” of the 14th Amendment confers citizenship by national birth (including military bases and embassies, U.S. territories, or one parent being a citizen) or naturalization. The stink of slavery was instantly eliminated granting former slaves citizenship by birth.

“Natural persons” is a catch-all description for any non-citizen resident from a foreign country. This definition is controlled by federal immigration laws – Texas cannot decide who is a natural person. Students taking classes on student visa, holders of a coveted H-1 visa, employees of a foreign country’s embassy or consulate, are all examples of natural persons. This matters for tax purposes, as a natural person pays income taxes (although not payroll taxes) on income earned here, just like a citizen.

The Constitution otherwise describes the rights of “people” or “person(s)” generically. Hence, it applies to anyone in the U.S., whether here legally or illegally – we all have the same basic Constitutional rights. Interestingly, when people talk about the rights of the unborn, they are “unborn” and not citizens under the Constitution, they are characterized as a “person,” science and medicine being pesky interlopers on reality.

The Constitution requires that all “persons” be counted by a census in calculating how many representatives in the House each state is allotted. This is found in Article 1, Section 2 of the Constitution, also containing the infamous “3/5th clause” counting slaves as 3/5ths of a person for census calculations.

An unauthorized immigrant is “invisible” and without legal status, like being subject to tax laws, while otherwise being bound by other civil and criminal, as well having constitutional rights. They are “visible” as a “person” for the critical census purpose, which is also the counting mechanism for formulas used in allocating government financial aid and resources from the federal government. States with large populations of immigrant populations – even those with no legal status, if they are counted – receive a twinned census counting bounce. This means that when Gov. Abbott ships migrants out-of-state, this dilutes state political power and coffers.

Over the years, our immigration laws were at least implicitly racist. The Alien and Sedition Acts started us down this dark path in the late-18th Century starting a quota system, in part, to protect us from populations fleeing France; in part, limiting immigrants from prospective pro-Jeffersonian-Democrat voters. The Immigration Act of 1917 was explicitly racist, barring immigrants from Asia; immigration quotas were also set at a minuscule 3% of existing population (favoring immigrants from the British Isles and Western Europe – Germany and France) and established a literacy test, also favoring Anglo-Saxons. In 1924, we reached our racist peak, adding Japan to the list of excluded Asian countries and tightening immigrant quotas to 2%, ethnically choking the immigrant flow from Southern (Italy) and Eastern Europe (Poland and Russia).

The racist quota formulas stretching back practically to the birth of our nation, if not the previous fifty years, essentially ended during the Civil Rights Era with the Immigration and Nationality Act of 1965. This initiated the concept of granting visas based on labor needs or family relations, as opposed to restricting the flow on ethnicity.

The trope is that the failure to staunch the flow of migrants suppresses wage growth, allows them to benefit from infrastructure without paying taxes (they do pay sales taxes), and increases crime (there is no supportive statistical proof). Yet, countries with restrictive policies (think Japan and China) have had their national economies smothered by population stagnation and depletes them of younger entrants into the workforce.

In contrast, immigration keeps refreshing our population. We have continued to enjoy the explosion of both high-end immigrant talent and lower-end workers (think the construction industry, home care, and landscaping). The continued upward productivity in our economy, in part, is fueled by immigration, legal and illegal – a national issue and not one Texas determines.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

HHJ News