The Question of HB497

In Utah – as elsewhere– illegal immigration has recently fallen into the long and lugubrious list of political issues which tend to galvanize the population into action, with the result that a new body of law has sprung up to resolve the situation.  Many of these new laws have been challenged on the question of their constitutionality, and Utah’s law is no exception.  Recently, HB497 – a part of Utah’s immigration law passed in the legislature a few years ago – has been given a great deal of attention and is currently being debated in the courts, pending certain Supreme Court decisions.  To understand the debate, it is important to appreciate the history of immigration in the United States, examine the constitutional status of illegal immigrants, and finally, to examine HB497 itself.

A Brief History of Illegal Immigration

As is common knowledge, the foundation of the United States went hand-in-hand with immigration, but the history of illegal immigration and how it was defined in this country is not so well known.  Nevertheless, it remains an important factor in understanding how the constitution applies to illegal immigrants today, and is worth taking the time to study.

1637-1656: Precluding the potential argument that the first European settlers in this county were illegal (the Native Americans possessed the territory at the time), the first historical case of illegal immigration in the United States probably happened around 1637, when the Massachusetts colony made it illegal for any outsider to enter the colony without permission.[1]  Seemingly motivated out of a desire to prevent people from exploiting the hard work of the colonists, it can be safely assumed that, for the first time in the history of the colonies, populations were reaching the point that competition for resources between the colonists was at last becoming noticeable.[2]

1656-1700: By 1656, immigration laws had taken on a different, distinctly less innocent tone, in the form of anti-Quaker immigration laws.  With the exception of Rhode Island, all the U.S. colonies had some form of anti-Quaker legislation at this time, and the punishments for illegally entering colonial territory (as a Quaker), ranged from whipping to actual execution.[3]  While this anti-Quaker legislation was not to last more than a period of a few years, it nevertheless represented a significant development in immigration law: immigrants were being deemed illegal based on their chosen beliefs and lifestyle.

1700-1808: Some years after the disappearance of any sizeable populations of Quakers, immigration law evolved again, this time taking into account the physical capabilities of the potential immigrants.  In 1700, with the Massachusetts colony again paving the way, immigrants who were lame, impotent or infirm were deemed illegal, unless they provided ‘security’ to the town they wished to live in, thereby assuring that they would not become dependent on the town for support.[4]  This new qualification for immigration carried obvious economic overtones that were to continue to the modern day.

1808-1837: For the next hundred years, immigration law underwent a series of refinements, but it was not until 1808 when the first definitive “illegal aliens,” were actually defined by the U.S.  During that year, the federal government outlawed the foreign slave-trade, with the result that some 50,000 slaves smuggled into the U.S. from 1808 on were technically illegal aliens.[5]  How effective the government was at enforcing the law, and what became of these illegal aliens if they were identified, are beyond the scope of this article.

1837-1864: In any event, by 1837 the Supreme Court made its first appearance in the history of immigration law when, in New York v. Miln, the court affirmed that the states were empowered to prevent the importation of “paupers, vagabonds, convicts and infectious articles.”[6]  While seemingly empowering the states to regulate immigration as they saw fit, by 1849 the Supreme Court deemed that immigration was, in fact, the purview of the U.S. Congress, identifying immigration as ‘foreign commerce,’ the regulation of which the Constitution specifically reserved for congress.[7]  Largely in reaction to the surge of illegal Irish immigrants fleeing the Irish Potato Famine, the federal government was, for the first time, empowered to regulate immigration law, determine the status of illegal immigrants, and take what actions it saw fit.[8]

        1864-1892: It did not, of course, take the government long to act on this new authority: by 1864 the President appointed a Commissioner of Immigration for the first time, and by 1880, the government had suspended all Chinese immigration in response to the surge of immigration that resulted from the gold rush.[9]  By 1882, the government passed the “Immigration Exclusion Act,” which prohibited all immigration of criminals, the poor and the mentally ill.[10]  Finally, by 1891, Congress established the first federal agency to administer the regulation of immigration and, in 1892, opened the famous Ellis Island to act as a screen for illegal immigration from Europe.[11]

        1892-2007: The history of immigration – and with it, illegal immigration – now took on a more familiar tone: even as European and Asian immigration began to be strictly regulated, the chaos of the Mexican Revolution in 1910 caused tens of thousands of Mexicans to immigrate illegally into the United States, reaching an estimated population of one-million by 1927.[12]  As a result, in 1915 the United States established its first federal patrols along the U.S. – Mexico border and, by 1924, the U.S. Border Patrol was officially established.[13]  This did little to stem tide, however; by 1980, the population of illegal Mexican immigrants had increased to an estimated two-million, and by 2007, it was to increase to an estimated six-million – nearly half of the overall population of illegal immigrants.[14]

        2007-2014: In 2008, the United States passed a law – known as the William Wiberforce Trafficking Victims Protection Reauthorization Act – which required that children who immigrated illegally from any country other than Mexico and Canada be granted the right to a hearing before a judge, in order to determine whether or not they should be allowed asylum for humanitarian reasons.[15]  Although at the time this law accounted for the sources of most illegal immigrants, by 2014 its effectiveness was being questioned when, largely in response to a surge of violence and poverty in the Central American States, thousands of illegal immigrants began to surge across the Mexican-American border.  Because most of these immigrants came from Central America and included thousands of lone children, the Department of Health and Human Services, responsible for housing children until they receive their hearing, quickly became overwhelmed, and a new debate was sparked in immigration law.[16]

The Constitutional Status of Illegal Immigrants

                The question of whether or not the United States Constitution applies to the 11 million illegal immigrants in the country today is hotly debated.  While the Constitution itself does not once refer to the issue – the government had to make quite a stretch in identifying the issue of immigration with ‘foreign commerce’ (see above) – the Supreme Court has repeatedly ruled that the Constitution does apply to any person under the jurisdiction of the United States government.

                The first case during which the Supreme Court addressed the issue arose in the wake of the massive Chinese immigration that took place during the gold rush of the 1850s.  The case was that of Yick Wo vs. Hokins, a Chinese laundry owner who was imprisoned for 10 days by a Sheriff from San Francisco after building a laundry without consent of a ‘board of supervisors.’  The Supreme Court ultimately ruled that the arbitrary power of this board was just that – arbitrary to the point of being illegal – but in the process, they addressed the status of foreign aliens.  In quoting the fourteenth amendment, they pointed out that the protection it provided was not restricted to citizens: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[17] Thus, the court declared that “these provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”[18]

                By 1896, a second case arose when, in Wong Wing v. U.S., a Chinese national was found to be in the country illegally and was subsequently sentenced to 60 days imprisonment and hard labor before being deported.  The Supreme Court ultimately ruled that the sentence “inflict[ed] an infamous punishment, and hence conflict[ed] with the fifth and sixth amendments of the constitution,” thereby insinuating that the constitution was applicable, even to illegal aliens.[19]  Indeed, the court ultimately stated as much: “It must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”[20]

                More recently, the U.S. Supreme Court took up a case originating in Texas, where illegal immigrants were being denied enrolment in public schools.  In 1982, the court ruled that the Texas law concerned was unconstitutional, as “the illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws.’”[21]  Thus, despite the fact that they were illegal aliens, “the undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents.” [22]

                In short, the U.S. Supreme Court has ruled time and again, for around 100 years, that the Constitution and the protection it provides applies equally to all people under the jurisdiction of the government.  Conditions that the Constitution provides for revocation of rights are similarly applied equally – the right to vote, for instance, can be restricted for a convicted felon as well as an illegal alien.  Nevertheless, the law remains equally applicable, whether dealing with illegal aliens or not.

Utah’s HB497

                During the 2011 General Session of the Utah State Legislature – and amidst the general crackdown on illegal immigration that took place that year – a number of laws were passed with the aim of enforcing immigration law.  Of those laws, 3 were generally dismissed, as they violated constitutional and federal statutes a little too blatantly; one, however, was just legal enough to generate argument for its survival, and it is called HB497.  Currently, HB497 is currently on hiatus, pending a decision by the courts on its legality; but for the readers who aren’t satisfied by the obscure name of the law, it is worth explaining.

                In essence, HB497 turns your average police officer into an immigration enforcement agent.  It empowers (or even requires), police officers to request immigration status papers on any individual they stop, provided they have ‘reasonable suspicion,’ that the individual is an illegal alien.  These immigration papers are not something people generally carry around in their wallets, and with ‘reasonable suspicion’ being as vague as it is, the law essentially puts anyone at risk of prolonged and illegal detention who is not of European descent, does not speak English as their first language (or at all), or who otherwise raises suspicion and cannot produce their papers as proof.

                Ethically, the concerns about this law are relatively straightforward – it’s tantamount to racial profiling – but the debate on the constitutionality of the law continues.  First, there is the question of the ‘Supremacy Clause’ of federal authority; that is, Article Six, Clause 2 of the U.S. Constitution, which stipulates that federal law be considered supreme, and essentially trumps any state law that might conflict with it.  Because, as seen in the above history, immigration is considered the jurisprudence of the legislature on the grounds that it constituted ‘foreign commerce,’ any laws which Utah passes concerning immigration can arguably be called unconstitutional and, therefore, illegal.

                Second is the age-old question of the Fourteenth Amendment’s Equal Protection Clause.  As already mentioned, the Supreme Court has, on numerous occasions, insisted that the Equal Protection Clause applies to immigrants – both legal and illegal – and consequently, a law that would single out a minority group for prolonged stops and unduly harsh treatment must be considered unconstitutional.  HB497 specifically makes vulnerable anyone who is not native to the United States, whether they are present legally or not, and so arguably violates this precept.  It remains to be seen whether the Supreme Court will maintain its consistency in rulings.

                And so the debate over HB497 goes.  Whether you agree with the efforts of lawmakers to regulate immigration or not, the issue is not a recent one.  For over three hundred years the United States has been wrestling with it, from the Quaker presence in the 1600s to the Chinese immigration of the nineteenth century; from the Irish tide fleeing the Potato Famine to the surge of Mexican nationals in the recent day.  That Utah is attempting to enforce the law is of course admirable; but all lawmaking requires scrutiny, lest we make ourselves vulnerable to discrimination and decline.

Posted by Haynes & Fuelling on July 17th, 2014

Photo Courtesy of:

[1]               Emberson Edward Proper, Colonial Immigration Laws: a Study of the Regulation of Immigration by the English Colonies in America (New York, Columbia University Press, 1900), 23.

[2]               Emberson Edward Proper, 23.

[3]               Emberson Edward Proper, 25.

[4]               Michael C. Lemay and Elliott R. Barkan, ed., U.S. Immigration and Naturalization Laws and Issues: A Documentary History (United States of America: Greenwood Press, 1999), 2.

[5]               Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882 (United States of America: Hill & Wang Publishing, 2004), 6.

[6]               New York v. Miln, 36 U.S. 11 Pet. 102 102, ¶143 (U.S. Supreme Court, 1837).

[7]               Roger Daniels, 9.

[8]               Roger Daniels, 9.

[9]               Roger Daniels, 18.

[10]              Michael C. Lemay and Elliott R. Barkan, xxxii.

[11]              Roger Daniels, 25.

[12]              Roger Daniels, 180.

[13]              U.S. Customs and Border Protection (USCBP), [database online]; available from, [1].

[14]              Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008 (United States: Department of Homeland Security, 2008), [1].

[15]              Alan Gomez, Obama Seeks Change to Law that Protects Immigrant Kids (USA Today, 2014), [1]; available from

[16]              Alan Gomez, [1].

[17]              Yick Wo v. Hopkins, 118 U.S. 356, ¶369 (U.S. Supreme Court, 1886).

[18]              Yick Wo v. Hopkins, ¶369.

[19]              Wong Wing v. U.S., 163 U.S. 228, ¶233-234 (U.S. Supreme Court, 1896).

[20]             Wong Wing v. U.S., ¶238.

[21]              Plyler v. Doe, 457 U.S. 202 ¶215 (U.S. Supreme Court, 1982).

[22]             Plyler v. Doe, ¶203.

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