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U.S. Congress

6 min read

Congress and the power to restrict immigration

In the immigration episode, Bob Zadek opened by putting to Alex Nowrasteh the claim that there is almost nothing in the Constitution empowering the government to affect who can come into the country, and that for the first hundred-plus years of American life there was no immigration policy beyond the assumption that people who wanted to come could come. Nowrasteh said he would go further: Article 1, Section 8 of the Constitution, which lays out Congress’s power, contains a power to grant naturalization, the process for becoming an American citizen, but nothing about immigration restrictions, the ability to come here and live and work. Up until 1875, Nowrasteh said, there were zero federal restrictions on immigration, and under federal law a person could have it tattooed on his face that he was a murderer without any law on the federal books stopping him from entering. He described this as going a little too far, but said it was assumed that the states would handle the matter at the point of entry, in New York or Philadelphia or Baltimore, and that they largely did. Immigration Myth-Busting - Redux (2020)

Nowrasteh located the shift in federal involvement beginning in 1875, when the federal government started to ban criminals, prostitutes, people considered moral degenerates and others, and in 1882, when it banned the Chinese. The decisive change came in an 1889 Supreme Court case, in which the Court said the federal government has power to restrict immigration and that Congress has something called plenary power, which Nowrasteh glossed as meaning Congress can do whatever it wants without restriction. He characterized this as judge-made law resting on the fact of U.S. sovereignty rather than on any clause of the Constitution, and said it is not consistent with what the founders believed. There is no sovereignty clause in the Constitution like that, he said, and no clause saying Congress has power over immigration. He contrasted immigration with the other powers assumed to belong to a sovereign government — raising an army, levying taxes, organizing itself — all of which, he said, were spelled out in detail in the Constitution, while immigration was not. Immigration Myth-Busting - Redux (2020)

From this Nowrasteh drew the conclusion that the founders did not want the federal government to be able to limit immigration, and that they thought the states would play a role in keeping out those considered undesirable. He put immigration law in context as second in complexity only to the income tax code on U.S. books, a state of affairs he called unimaginable to people in the past, for whom it was assumed that free people would be able to come to live and work and that most would eventually become citizens. The assumption in American law today, he said, is the exact opposite: that nobody is allowed to come, with the exception of a handful of individuals selected by the government. Immigration Myth-Busting - Redux (2020)

Congress and the FBI

In the FBI episode, Zadek asked Harvey Silverglate whether people of power in government had indicated support, even below the surface, for the thought of abolishing the FBI, or whether there was no such groundswell among those able to make a difference. Silverglate answered that quite a few federal prosecutors had confided to him that they are shocked by the dishonesty of FBI agents, but cannot say much in public or are not willing to sacrifice their careers to do so; that a couple of federal judges had told him they agree with him; and that quite a few law professors do as well. People who really know the system agree with him, he said, but because of Congress this is not going to happen, at least not in his lifetime or Zadek’s. The FBI: Our Uninvited Federal Police Force (2022)

Silverglate attributed part of the Bureau’s grip on Congress to the Bureau having so much on so many congressmen. He was careful to say this was not intended as a comment that congressmen are corrupt, invoking his “three felonies a day” thesis — that you can pin a crime on just about anybody, a federal crime on just about anybody. The Bureau, he said, has this great device it can use to subtly blackmail the people who are supposedly in charge of this country, that is the Congress, because every congressman, engaged in busy lives and a lot of financial transactions, is somehow susceptible to being charged with a federal felony. He described a symbiosis between the federal criminal code and the Bureau, and called it a vicious symbiosis. The FBI: Our Uninvited Federal Police Force (2022)

Across episodes

The two episodes treat Congress from opposite directions and do not develop a single shared argument. In the immigration episode, Nowrasteh argues that Congress acquired a power over immigration that the Constitution does not enumerate, through an 1889 Supreme Court decision recognizing plenary power. In the FBI episode, Silverglate argues that Congress fails to restrain an agency it is supposed to oversee, because the breadth of the federal criminal code gives the Bureau leverage over individual congressmen. The earlier treatment concerns Congress as an expanding source of federal authority; the later treatment concerns Congress as an institution held in place by the agency beneath it. No excerpt shows either guest responding to the other’s account.

What the sources do not cover

The excerpts do not describe the internal operation of Congress — its committees, leadership, or legislative procedure — nor any specific bill, statute or amendment by name. They do not state which Supreme Court case established plenary power, only its year. They do not say what became of the proposals or arguments discussed, and the FBI excerpt breaks off at a section heading on federalism and the Civil War before any further statement is made.

Guests and episodes

4 appearances by 4 guests, 2018–2023.

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