However, the failure of the court to produce a majority opinion significantly diminished the value of the Passengers Case as formal legal precedent.

Norris was the master of the Union Jack, a schooner from St. John, of the Province of New Brunswick, then part of the British Empire.

Norris was compelled by Bailey, an official of Boston, to pay $38.00 before the 19 alien passengers, none of whom being in such a state or having such a history requiring the posting of a bond, were permitted to disembark.

A federal constitutional principle, known as "standing," precludes the giving of an advisory opinion, a pronouncement of a decision that goes beyond the facts and record of the particular case.

In Smith v. Turner, the portion of the New York statute concerning the collection of a tax measured by the number of steerage-class passengers from ships arriving from a foreign port was declared unconstitutional.

In Norris v. City of Boston, that portion of the Massachusetts law imposing a tax measured by the number of alien passengers allowed to disembark without a bond was struck down as unconstitutional.

Justices McLean, Wayne, Catron, McKinley and Grier all concurred with the judgment of the United States Supreme Court in both cases.

Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause.

It is unclear what role the Supremacy Clause had in McLean's constitutional theory since he apparently viewed each level of government as supreme in its own legitimate and distinct sphere of operations.

McLean also considered the New York law a violation of Article I, Section 8, of the US Constitution, requiring all duties, imposts, and excises to be uniform throughout the United States.

Justice Wayne's concurrence with the judgment, although referring to several particular provisions of the US Constitution, was apparently derived from a holistic understanding of the general impact of all of its provisions on commerce as well as the nature of commerce as it exists, even in the absence of formal documents such as the Constitution or the preceding Articles of Confederation.

Under the European tradition "[a] nation is... fully authorized to prohibit the entry or exportation of certain merchandise, to institute customs and to augment them at pleasure, to prescribe the manner in which the commerce with its dominions shall be carried on, to point out the places where it shall be carried on, or to exempt from it certain parts of its dominions, to exercise freely its sovereign power over the foreigners living in its territories, [and] to make whatever distinctions between the nations with whom it trades it may find conducive to its interests.

"[15] Wayne did not recapitulate the various ways in which Congress, by treaty and statute, actually regulates that foreign commerce on immigrants and other alien passengers from abroad, particularly from Britain, preferring to incorporate by reference the detailed treatment of these measures by Catron.

Notwithstanding the firmness of his opinion regarding the right of Congress, to the complete exclusion of state prerogative, to regulate foreign and interstate commerce, and even his view that the exclusivity principle had been authoritatively established by prior precedent of the Supreme Court, Wayne criticized a parallel discussion of Justice McLean and announced that he and the other Justices concurring in the judgment "do not think it necessary in these cases to reaffirm,... what this Court has long since decided, that the constitutional power to regulate 'commerce with foreign nations, and among the several states and with the Indian tribes,' is exclusively vested in Congress and that no part of it can be exercised by a state.

He deemed that the federal government had engaged in regulating foreign commerce regarding passengers arriving from Britain when it entered into a series of treaties with that country.

Wayne declared that the New York and Massachusetts statutes "conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries 'freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively;....'"[18][19] To Wayne, taxes represent a cost, which may be imposed on some item, person, activity, or status that is already within or relates to what or who is already within the jurisdiction of the taxing authority.

Thus, the police power of a state to protect the health of its residents includes the right to exclude from its territory diseased people.

However, the police power that was most critical, especially to part of the Massachusetts statute, was the right of a state to protect its economy and social fabric from an onslaught of paupers.

However, Wayne insisted that analysis of the various views of the five Justices concurring in the judgment establishes the willingness of a majority of the Supreme Court to strike down state taxation of immigrant paupers or the shipping companies that bring them to shore.

Wayne deems a tax of the nature imposed by the New York and Massachusetts statutes to create a "Preference" between ports, in violation of the Constitution.

Again, although Article I concerns Congress and Section 9 concerns an authority expressly granted to Congress, Wayne construed uniformity as not only placing a limitation on the exercise of Congressional power but also imposing on the states the duty not to compromise the uniformity of "Duties, Imposts and Excises" collected "throughout the United States."

In addition to Wayne's discussion of the constitutional issues, he expounded at length on the alleged history and imputed status of Miln.

"[21] He also bitterly accused Chief Justice Taney of knowingly disregarding that supposed fact and thus creating a false precedent in the official reports.

The Declaration of Independence had included in the offenses of the British King that he had "endeavored to prevent the population of the colonies by obstructing the laws for the naturalization of foreigners, and refusing to pass others to encourage their migration hither.