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Article 1 Section 9

"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

The "Constitution Center" says this is about slaves but could/has the boldened clause be used by the Federal to charge California for all the illegals they are harboring?

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    You might do better at law.se, the politics answer is "this is silly" – user9389 Nov 7 '17 at 19:27
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    Since it's now past 1808, hasn't Congress already decided "any of the States" can no longer unilaterally migrate or import persons? In other words, Congress has prohibited admission of these persons, so they can't (perhaps ironically) place a tax or duty on these importations/migrations even if the exist ("haboring" and "importing" are quite different). – user2565 Nov 8 '17 at 14:05
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    @barrycarter - Congress can always tax imports. Its one of their enumerated powers. This just specifically restricted their ability to tax importers for their imported human "property" for a while. The idea was without that limit, Congress could theoretically have used exorbitant import taxes to effectively outlaw the slave trade, getting around the moratorium. – T.E.D. Nov 8 '17 at 14:42
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    Also, I'd say as a general rule of thumb, if you find yourself seriously considering using part of the Constitution that was written to support slavery (a bonafide evil purpose) for your modern political purposes, you really ought to stop and seriously rethink the morality of what it is you want to do. – T.E.D. Nov 8 '17 at 14:49
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    I wish there was a way to give you 3/5th of an upvote – Clint Eastwood Nov 8 '17 at 15:01
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"a Tax or duty may be imposed on such Importation"

California is not importing immigrants. It may be accepting and harboring immigrants but it is not paying smugglers to bring them across the border, though that does sound like an alex jones-esque conspiracy theory. There is nothing to tax.

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  • but it is a migration – Clint Eastwood Nov 7 '17 at 19:58
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    @ClintEastwood - But the tax is only on importation, not migration. – Bobson Nov 7 '17 at 20:10
  • That sounds like something for scotus to decide. – Clint Eastwood Nov 7 '17 at 20:52
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    This would violate both the spirit of the law (the law concerns the slave trade) and the letter of the law (migration is not importation). The most right wing supreme court justices are textualists and thus would not advocate right nor left-wing judicial activism, but even if all the supreme court justices died and were replaced by white nationalist activists, they would have an impossible task in justifying such a ruling. – Gramatik Nov 7 '17 at 21:29
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    @Gramatik - I'm kind of touched by your faith in SCOTUS textualisim being an actual principal rather than an easily-discarded excuse for political decisions. – T.E.D. Nov 8 '17 at 13:13
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To answer your question: Absolutely not.

There are a couple issues with why this cannot be used in the context you describe.

  1. This clause absolutely relates to the taxation on the importation of slaves. It prevented congress from barring the importation of slaves prior to 1808. Describing the “importation” or the suspect “migration” (in the same line of text) of persons is treating humans as a commodity. Such treatment was barred via the 13th and 14th amendments, which abolished slavery and established the definition of a citizen and the equal protection of the rights of citizens of the US, respectively. You can no longer buy and sell a person on American soil. Facilitating immigration is not importation.

  2. Also, say we do treat undocumented immigrants as a commodity. What are the courts going to do with this clause? Make California pay a tax at $10 per illegal alien?

There is no constitutional basis for the case facts if such a case were to ever be filed. An old clause relating to the importation of slaves in an almost 250 year old document is not going to allow the United States to win a suit against a state over undocumented immigrants, especially if the end goal is deportation.

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    You'd have to tax the importer, which would be the aliens themselves. Congress could write that law today if they wanted to (regardless how you chose to interpret this clause, immigration is their bailiwick). Arguably, they already have; Those who legally migrate pay lots already. But good luck enforcing it on the people who sneak in. – T.E.D. Nov 8 '17 at 19:44
  • Hi and welcome. I would definitely rephrase your description of the document. I would maybe flesh out why paying $10 per person is illegal and ineffective. And maybe expand why treating people as commodities is bad, or better non-politically viable. – user9389 Nov 8 '17 at 19:46
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    @notstoreboughtdirt - I think anyone who needs an explanation of why treating people as commodities is bad is gonna need a whole lot more instruction than they are liable to find on this one website. – T.E.D. Nov 8 '17 at 19:48
  • Just for fun, let's say the $10 tax per undocumented immigrant applied. Good luck counting them. And finding them. And if you actually could find & count them, shouldn't federal immigration laws then be enforced? What a mess. – Michael Benjamin Jan 25 '18 at 11:20

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