In 1824, New York passes a law requiring the captains of all out-of-state ships to, upon docking, account for their passengers and post security for them. This prevents non-citizen paupers from becoming public dependents. The city sues to recover $15,000 in penalties pursuant to the law.
- The Commerce Clause (Art. 1, §8, cl. 3)
Is the state law a regulation of interstate commerce? Or, given that the care of poor immigrants is - at the time - a solely-local responsibility, is the law an exercise of police power? That would make it part of the "mass of power" (BLBAS, 195) reserved to states alluded to in Gibbons v. Ogden (1824). But assuming it is a regulation of interstate commerce, is it still valid assuming that Congress does not explicitly override it?
The majority skirts the constitutional issue by casting the law as an instance of police power, and deciding for New York.
At the outset, Barbour explains, "We shall not enter into any examination of the question, whether the power to regulate commerce, be or be not exclusive of the states..." (192) Why? Here, he examines the ends and means of the New York law. Its end is not commerce, but rather to properly assuage the "evil" burdensomeness of poor immigrants--- and, Barbour claims, cross-territorial flows of people do not amount to commerce. Its means are appropriate to state police power, as the law properly acts "within the territory, and therefore, within the jurisdiction of New York" (193).
Does there exist an act of Congress in conflict with New York? The closest thing, it seems, are anti-smuggling laws "whose operation is not even on the same subject" (194). Therefore, the New York law is compatible with both the "strong" claim (states cannot independently regulate commerce) and "weak" claim (states can regulate commerce except where Congress directly interposes) of Marshall's opinion in Gibbons.
The New York law is, according to precedent, constitutional-- yet Barbour does not place his opinion on this ground. He wants, rather, to give states maximal police power; states, in exercising it, have "complete, unqualified and exclusive" authority (195). Whether states make internal regulations that explicitly contradict the "Supreme Law of the Land" or blatantly regulate commerce, it would seem, is irrelevant to him.
Thompson argues against the "Dormant" Commerce Clause. If the delegation of regulatory power does not imply a converse denial of power on the part of states, then a state law can exercise that power until Congress explicitly steps in. Why affirm this conditional's antecedent? Thompson answers with precedent, namely his interpretation of Willson v. Blackbird Creek Marsh Company (1829).
Story repeats Marshall and Johnson's argument in Gibbons, that "[f]ull power to regulate a particular subject, implies the whole power, and leaves no residuum [to the states]" (197). The law is irreconcilable with this principle, because whatever its purpose, its means make it tantamount to a regulation of commerce. After all, when Congress passes immigrant regulation, it relies on the Commerce Clause to do so.
Federal laws concerning immigration are on the books. For these laws to discharge their purpose, there can be no "double operations of distinct and independent sovereignties" (198), as Congress wills whatever its regulatory laws omit. Further, the Court majority espouses a principle which would justify a severe curtailment of the right of travel, protected by the Privileges and Immunities Clause (Art. IV, §2, cl. 2)--- even though such a right need not extend to paupers.
Since each justice speaks in the language of precedent, Story unloads the ultimate argument within this framework. He cites Marshall's opinion on the law before his passing: that it is unconstitutional.
Miln demonstrates how deferential the Taney Court was to states (despite claiming to adhere to the Marshall Courts' precedents). The boundless power Miln affords to state police power - such that states may regulate commerce in the face of federal statutes - has not "stuck" as precedent. The Dormant Commerce Clause, intimated in Gibbons, has, however.