Whether immigration laws have been crude or cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress.
— Justice Felix Frankfurter, Harisiades v. Shaughnessy (1952)
I [Mr. Delgado, Dominican-born resident of Manhattan for twenty-seven years] want to tell you [the judge at the deportation hearing] and my family that I am no thief. I’ve never taken anything from anyone in my life, not even a pair of nail clippers. What happened to me was wrong. It was a miscarriage of justice. I agreed to a plea for something I didn’t do. I thought I was gonna get a short sentence and then be released. I thought if I didn’t do that I was gonna get fifteen years. That’s what they threatened me with. No one told me I was gonna get this [deportation]. Okay, I have a temper and I can get violent. It happens when I drink, and I’d been drinking when all this happened. I don’t remember much about it, except the guy gets the better of me and I go home. That’s about it. But I didn’t steal nothing from nobody. All I wanted to be was a baseball player, that’s all. I got a scholarship to some university, but it didn’t work out. I didn’t get picked up, and so I got depressed. I get very depressed and I start to drink. I know I need treatment for this, but I don’t need jail and I don’t need to be torn away from everything I love. This is my life here. I’ve been here since I was a kid. This is all I know. Here’s my family right here. I don’t have no family where you wanna send me. What am I gonna do there? Where am I gonna live? How am I gonna see my children again? Where’s the justice in all of this?
— quoted in David C. Brotherton, “Exiling New Yorkers,” in "Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today" (2008)
The nature of the immigration “problem”
The contemporary manifestation of the immigration crisis, in full flow now for more than 20 years, is better understood as a moral panic rather than a typical policy problem amenable to rational solutions. The moral panic over immigration we have witnessed in this country for so long is really a rechanneling of economic anxiety, stemming from the crisis of globalization, toward the vulnerable bodies of immigrants, since we as a nation have felt ourselves helpless to do anything about globalization.
The fact that the moral panic often reaches crescendos independent of the magnitude of the problem -- such as the Prop. 187 movement in California in the early 1990s, when NAFTA had barely taken off, or the current anxiety when net immigration from Mexico is declining and probably negative -- suggests that this hysteria is often disconnected from reality.
Although President Donald Trump’s executive orders so far might sound unprecedented, in fact every initiative he has taken or proposes to take has precedent in our immigration history, in all three branches of government. Our federal immigration policy began about 125 years ago in an exclusivist and racist vein, targeting the Chinese, then the Japanese and other Asians, and after that southern and eastern Europeans, before moving on to Mexicans as the prime target of exclusion for about 100 years, where we remain today with the recent addition of Muslims and Arabs as special targets.
The judicial branch has historically granted the executive great leeway to do as it wishes on immigration, considering it (quite wrongly, I think) an arena of foreign policy, passing under what’s known as the “plenary power” doctrine. Though there have been times, in periods of liberal ascendancy, when there has been pushback against plenary power, the idea is inherently connected to the way federal immigration policy came into being and was conceptualized in the early going, which renders it difficult to get away from. If the judicial branch, in the wake of the Trump administration’s expected assault on immigration, takes a restraining posture, it would actually be a deviance from, rather than a continuation of, historical precedence.
We have come to an impasse at last, after 125 years of misguided federal immigration policy, where there is no way out of our current moral panic but to recognize the immigration crisis as a human rights catastrophe of historic proportions, ranking up there with the greatest known tragedies toward mass populations, and to address it as such rather than resting hope in any of the so-called “reform” measures that do not get to the bottom of the human rights tragedy.
“Comprehensive immigration reform,” as it’s called, has been nothing but deceitful in any of the various forms it has appeared in over the last 35 years. That is because it exacerbates, rather than alleviates, the human rights dimension of the present crisis. Similarly, the current misguided focus on saving the so-called “Dreamers” (people who arrived at a young age) is nothing but a brilliant tactical maneuver to split off the “good” from the “bad” immigrants, thereby compromising the human rights stature of the entire immigrant population, extending even into legal residents and naturalized citizens when the full consequences of the disciplinary mechanisms trained on immigrants as a result of the Dreamer logic are taken into account. The alleged “legal” versus “illegal” immigrant separation, which restrictionists are so fond of using, is a complete myth, given the way our immigration system works, and is designed to strike a blow at the human rights to which all immigrants should be fully entitled.
The Trump administration is only carrying to its logical conclusion the fatal contradiction in our immigration laws: A deportee is not granted the rights accruing to accused or even convicted criminals because deportation is considered a civil or administrative matter rather than a criminal one, despite the fact that deportation has vast consequences on human lives, as severe as the harshest criminal proceedings.
The only way to address this fissure, now manifested in the tragic mass deportation policy Trump has embarked upon, is to make deportation a criminal matter, so that the entire range of constitutional rights comes into play. Otherwise the immigrant is prosecuted as a criminal but is deprived of the rights of a criminal defendant. Either deportation is or is not criminal; it cannot be treated as if it were criminal from the government’s point of view but not criminal from the immigrant’s point of view.
Immigration, in short, should be removed from criminality, even in the face of any “violations.” It is actually an administrative matter, as it has been and should be, and the concessions to criminal disciplinary action made by neoliberal policymakers, over the last quarter-century in particular, should give way to a regime where there is never detention on purely immigration-related charges, where we start moving toward completely free and open borders -- NAFTA, in the greatest anomaly contributing to the creation of the “illegal” immigrant population, removed restrictions on capital movement in North America at the same time as it clamped down on labor movement and generated multiple channels for “illegality” -- and where we recognize that neoliberal elites are responsible for a general punitive regime that is targeted not just toward immigrants but toward poor people in general.
The year 1996 seems in retrospect to be the true turning point in our recent constitutional history, as anti-immigrant, anti-welfare and anti-terrorist legislation was passed in the same year, with mutually reinforcing effects sending shock waves that reverberate throughout the polity to this day. With the proliferation of new categories and exceptions, half a million elderly and disabled immigrants lost Supplementary Security Income (SSI) payments, while another million immigrants lost food stamps; at the same time, new descriptions of crimes were created to pull together immigrants and terrorists in a haze of disrepute that has never been cleared up.
It should also be recognized that there is no moral right to exclude, and that all the philosophical reasonings for exclusion (based on national sovereignty) are on very thin ground indeed. If globalization is going to work, then discarding the false grounds for exclusion is the only way to go about it. Given the technological capacity in the hands of the state, exclusion inevitably turns into a process whereby the human rights of the native population are truncated, and national sovereignty turns into a monstrous idea that soon ends up having little to do with protecting borders and everything to do with reining in human rights for everyone.
As Trump moves forward aggressively on his stated racist agenda, we need to have our baseline moral arguments straight to counter the clarity of the racists in power. Our starting point should be this: As soon as a person sets foot in America, he or she has full constitutional rights, without exception.
Certainly, the longer one is present on American soil, the claim to constitutional rights, including an absolute bar against deportation, becomes stronger. But the claim to rights should not have anything to do with length of stay; setting up arbitrary cut-off points means that they will always be subject to political whims, extending further and further against the moral logic of membership due to one’s presence alone. At the moment Trump is claiming "expedited removals," i.e., deportation without judicial hearings, a concept that was enshrined in the 1996 legislation called the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), for those who have present in the U.S. for less than two years.
Our ongoing violation of the rights of long-term immigrants in particular is on par with the history of some of the worst crimes against humanity, given the size and nature of the resident population (about 10 million people, multiplied by their immediate families, so we are talking about perhaps 50 million people directly affected, inhabiting all sorts of mixed-status families). Unless we treat the problem in this true perspective, any shortsighted policy solutions will only make the problem worse and the stain on our constitutional order will become more severe.
Immigration before federalization
Until the 1880s, when the federal immigration bureaucracy came into being for the first time, immigration was a state issue, with different states treating immigrants differently, depending on economic and social conditions. In the generally laissez-faire environment that prevailed from the founding of the nation until 100 years later, there was no systematic method for knowing how many immigrants had arrived. Immigrants who were not yet naturalized citizens could even vote in elections, in many cases.
There was some enforcement by the states of the “liable to become a public charge” (LPC) principle -- that is, excluding or restricting immigration on the basis of economic status or perceived employability -- but before federal laws made much of this idea there was considerable laxity about this rule. Whereas contemporary immigration law, especially since the passage of the Immigration and Nationality Act (INA) of 1965, makes much of family unification as a principle, in reality it was only during the era when immigration was not under federal control that family unification truly worked as a reality.
All was not peaches and roses, however, even in the free environment — we might call it a condition very close to open borders — of the 19th century. Successive movements of immigrants after the original English stock were considered in exactly the same terms of approbation that we see today: They were apt to be public charges, they were unassimilable, their cultural values were “un-American,” they were of inferior racial stock and carriers of disease, they would be disloyal to America and contribute to its democratic collapse. Such charges were leveled against the Germans (going back to Benjamin Franklin’s castigation of that “stupid, swarthy” race), the Irish and Catholics in general during the era when states held sway over immigration, the difference being that federal laws didn’t exist then to subject the different European groups to systematic, nationwide oppression.
Partly it was the existence of leeway amongst the states that made the continuation of the first truly anti-immigrant legislation, the Alien and Sedition Acts of 1798, unsustainable. Had there been a federal bureaucracy in existence at the beginning of the 19th century, we might never have experienced the open borders of that century, fueling the strongest sustained era of economic growth in history. The onset of federal immigration legislation was in response to increasing numbers of Chinese on the West Coast at the end of the century, which led to laws that effectively shut down immigration from Asia. It is worth pondering how dramatically America might have changed had Asian immigrants not been barred from the 1880s until the restrictions were lifted in 1965.
Immigration becomes a cover for racism
In a pattern that was to be repeated all through subsequent history, we actively encouraged the Chinese to immigrate in large numbers when there were labor shortages, particularly to work on the railroads in the 1860s and '70s. Once the need for labor was not so great, however, the presence of the Chinese created great racial resentment, which led to the Page Act of 1875, the first attempt at federal immigration legislation, and then the Chinese Exclusion Act of 1882, the first comprehensive federal legislation, which was clearly racist in intention. As for the Japanese, who started to provoke anger on the West Coast with their acquisition of land and their agricultural skills, they were prevented from entering under the “Gentleman’s Agreement” of 1907. There was in fact an “Asiatic Barred Zone” in effect from 1917 until the 1960s liberalization.
In a key decision upholding the Chinese Exclusion Act, namely Chae Chan Ping v. United States (1889), Justice Stephen Johnson Field wrote:
They remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or modes of living. … If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.
The Chinese and Japanese who were already in the United States at the time of exclusion were forerunners of the current Latino population: Admitted but prevented from gaining citizenship, forced into a perpetual existence of what can only be called statelessness, stemming from the insistence of American capital on importing cheap labor from countries that were not desirable from the point of view of adding to the permanent roll of citizens.
It was in this period that the racial exclusion started going hand in hand with all sorts of exclusions that had not been on the books before, such as prostitutes, subversives -- added after the anarchist Leon Czolgosz (who was actually born in Michigan) assassinated President William McKinley, and persecuted especially during and after World War I -- and above all persons deemed LPC. American citizens who were female could not sponsor male non-citizens, though the same didn’t apply in reverse. A Sikh named Bhagat Singh Thind tried during the 1920s to gain citizenship on the basis that Indians were Caucasians, but that didn’t fly.
These were the beginnings of a bureaucracy that has caused sequential disasters. The logic of the exclusion of an entire racial group, Asians, led inexorably to the internment of Japanese-Americans during World War II. There is no clear dividing line between exclusion (prevention of entry), deportation (exclusion after entry, these days going by the euphemism “removal”), and internment (entire racial groups put into actual or de facto custody). There are strong similarities between Japanese internment and the various unregulated detention regimes that have followed in its wake; there are currently more than 40,000 immigrants in federal detention at any given moment. The Jews, again a target of widespread prejudice before the passage of the national origins system in 1924, likewise paid a high price when refugees from the Nazi genocide were barred entry before and during World War II.
To empower a national immigration bureaucracy with resources is to let it use them against the most vulnerable segments of the population. Enforcement is always likely to pit one group against another and favor those who meet certain political criteria. The recent rapid assimilation of the “model minority,” which since 1965 has turned out to be Asians, including South Asians, is the necessary counterpart to the prosecution of the political bias toward the unassimilable Mexicans, who are said to be loyal to their original homeland, the Southwestern United States (or Aztlán, to use the dismissive terminology deployed by white nationalists), rather than to America.
Once an immigration bureaucracy gets going, there are waves after waves of unintended consequences, all of which become inevitable when the principle of open borders is discarded.
For instance, the desire of the restrictionists in the last two decades of the 19th century and the first two decades of the 20th century was to limit the unassimilable southern and eastern Europeans, which led to a series of attempts in these critical decades of incipient restrictionism to bar their entry. A number of legislative efforts, such as the implementation of literacy tests in 1917 and 1921, accomplished part of the goal, leading finally to complete success with the passage of the National Origins Act of 1924. That law went back to the 1890 census, rather than any later count, to calculate the numerical caps on southern and eastern Europeans, in order to maximize the proportion of present and future northern and western Europeans.
But because labor needs had to be met somehow, American business was encouraged to seek Mexican immigration, and if this population didn’t proceed on the path to naturalization, all the better for business. To prevent southern and eastern European immigration, America chose to import unauthorized Mexican immigrants for the duration of the 20th century, occurring in successive bursts and leading to a population now considered infinitely less likely to assimilate by restrictionists.
Early in the 20th century numerous commissions, such as the Dillingham Commission, and numerous organizations, such as the Immigration Restriction League, advocated restrictionist measures. These were the direct forerunners of such later organizations as the Federation for American Immigration Reform (FAIR), the entity founded in the 1970s by environmentalist John Tanton, which has remained for the last 40 years the leading anti-immigrant institutional force in this country, under the guise of various fronts such as the Center for Immigration Studies, NumbersUSA, etc., with Breitbart News a prime outlet for their supremacist views today.
This trend was set in motion in an era when progressives were often anti-immigrant, as was also true of labor unions. Although labor unions have at last accepted immigration, this has not been the case for much of their history. Progressivism, environmentalism and trade unionism, in short, have often worked with eugenics ideology in the past to empower the federal immigration bureaucracy to embark on periodic assaults against groups who were out of political favor.
Though eugenics is no longer openly accepted, there is a strong taint of it in such polemics as Peter Brimelow’s book "Alien Nation" (1995), which, coming from a British immigrant himself, trades in many of eugenics’ tropes, as do many other contemporary restrictionists. Brimelow calls for a return to a 90-percent white population, and this seems very much the agenda of Steve Bannon and others in the White House today. Denial of automatic citizenship at birth, meaning the undoing of the 14th Amendment, has been an explicit goal of restrictionists for a long time. We will see efforts in this direction from the Trump administration as well.
When we endow a federal bureaucracy with unchecked authority, the distinctions between legal and illegal immigration become blurred, as law becomes malleable toward political ends. A group that may once have had an easy path toward citizenship may suddenly find itself barred due to shifting popular sentiment. Though the 1965 Act is generally presented as having ended the national origins quota system, this is not quite true, despite the ending of the Asian exclusion. Numerical quotas for the different hemispheres, and for various preferences under national origins, remained in place; all that changed, essentially, was ending the official complete bar to Asian immigration.
As a result of the continued built-in anomalies, with allowances for official Mexican immigration falling far short of the actual labor needs in agriculture and other labor-intensive industries, the contemporary “illegal immigration” problem was created and fueled. The 1965 Act enshrined family reunification, but this was partly a theoretical aspiration, since the numbers under the different preference systems (depending on relationship to U.S. citizens or permanent residents) were always inadequate to the needs, and because the system favored high-skilled over low-skilled immigrants.
Over time, once the logic of the 1965 act took hold, it became true that increasingly greater proportions of immigrants arrived with a path to citizenship already in hand (such as the skilled H-1B workers who got a boost in early-1990s legislation), with families already in tow or on their way, while an increasingly smaller proportion of immigrants adjusted to permanent status after having arrived without inspection or having arrived on temporary visas. In other words, the 1965 Act had the (unintended) consequence of reducing pathways to citizenship for lower-skilled immigrants while reserving more and more of that privilege for higher-skilled immigrants.
Innovations of the 1990s neoliberal legislation on immigration
These incongruities of the 1965 immigration act, our governing legislation to this day (in turn deriving from the root in the 1952 INA), manifested themselves in their most extreme form in a piece of legislation, the aforementioned 1996 IIRIRA, which provides the Trump administration with all the authority it needs for mass deportations without judicial review.
The 1996 law lumped exclusion and deportation proceedings into a common procedure called “removal.” This sleight-of-hand makes exclusion tantamount to inadmissibility, meaning that immigrants, even if they have been present on American soil for decades, can be considered not to have been admitted, and not in legal terms even to be "present," and therefore may be deprived of all rights.
Anyone deportable under the 1996 legislation that remains the law of the land is handled according to the newly enshrined “removal proceedings.” These limit judicial overview to the point of nonexistence, reducing judges to rubber-stampers. Asylum as we have known it ceased to exist in 1996, even if most Americans aren’t aware of it, just as the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of the same year vastly reduced judicial overview and imposed harsh penalties, and also allowed for secret evidence, a consistent feature of totalitarian regimes.
It is in these two destructive and interrelated laws, the culmination of more than a century of federal exclusionary policies, that we see the justification for the current rampant use of the term “criminal aliens.” Making no distinction between crimes ranging from shoplifting to murder, all of which are categorized as “aggravated felonies,” Congress has all but ended judicial review of removal orders and eliminated almost any possibility of relief from deportation. Moreover, “criminal aliens” (despite the surprise at Trump’s explicit delineation of the policy) have been subject for more than 20 years to mandatory detention, pending final deportation.
While immigration agents are said to enjoy new license under the Trump administration’s leeway to detain “criminal aliens,” in the wake of the 1996 law the attitude of what was then called the Immigration and Naturalization Service (INS) was not much different, as agents sought to gain credit by apprehending as many immigrants as possible. Prop. 187 in early 1990s California was the direct forerunner of the racial-profiling (“show me your papers”) SB 1070 law of Arizona in 2010. Both draw from the entire LPC discourse and potential denial of public services, including education, that have been staples of immigration discourse since federalization. Trump’s current and envisioned executive orders merely continue this tendency.
The 1996 legislation in its entirety was unconstitutional; before 9/11, the courts had started chipping away at it bit by bit, but then the political environment made further erosion of its authority difficult.
For example, in INS v. St. Cyr (2001), the Supreme Court ruled that habeas corpus review remained intact despite Congress’ laws with regard to “aggravated felons.” Significantly, in the 2001 case of Zadvydas v. Davis, the question was about whether an immigrant could be indefinitely detained because no country was willing to take him. In the Miller, Nguyen, and AADC rulings preceding Zadvydas, the plenary-power doctrine had been upheld again, yet the Court decided to take a different approach in Zadvydas and in Ashcroft v. Ma, where Justice Stephen Breyer, along with Justices O’Connor, Stevens, Souter and Ginsburg, stated that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
Breyer noted — and this is important for the current controversy under Trump — that detention cannot be construed as a punishment because the criminal law context doesn’t apply. The court noted its departure from Shaughnessy v. Mezei (1953) in that the immigrant was already in the United States and his detention was subject to closer constitutional examination.
IIRIRA was passed in the midst of the 1990s moral panic, when terrorism wasn’t the concern so much as the perceived threat immigrants siphoning off public benefits. California’s Prop. 187 went so far as to deem undocumented persons ineligible for all public services, including primary and secondary education and basic health care. IIRIRA tried to move as far in this extreme direction as federal authority would allow, holding that legal permanent residents were henceforth ineligible for any public assistance, since one of the leading (and false) charges of the restrictionists has always been that immigrants are a drain on public resources, and a net negative from the fiscal standpoint.
IIRIRA created the category of “aggravated felonies,” which included a vastly expanded list of crimes, including passing bad checks, shoplifting, driving under the influence, minor drug possession, child abuse and neglect, and domestic violence, all of which became deportable offenses.
Not only that, but such aggravated felonies were made deportable retroactively. For instance, someone could have been in this country 30, 40 or 50 years, and yet in an encounter with the authorities, if a past crime for which a person had been duly punished already came to light, then that person was deportable. Indeed, under this law untold numbers of people have been deported from the country, who had otherwise been law-abiding and had established families and businesses and community involvement, because a past offense, which was not deportable when it was committed, became known.
In our criminal justice regime, defendants are pushed hard to accept plea bargains of guilt in return for reduced sentences. Millions of people have in the past taken advantage of this, not knowing that there would come a day when their plea bargain would become grounds for deportation. Though Trump captured attention with his first executive order, laying out that anyone can be deported who has committed a “chargeable” crime, this was merely full implementation of the 1996 law, not something radically different.
As numerous immigration activists and scholars have documented, the options for judicial review are severely limited, even for residents who have established roots in the community for decades, as judges’ discretionary authority has been taken away. Defendants are forced to rely on claims that they will be tortured upon return to Latin American or African or Asian countries, with torture being interpreted in the narrowest possible terms; no amount of other hardship to the defendant of decades-long residency, and to his or her family in the United States, is taken under consideration.
IIRIRA also radically changed the refugee and asylum claims system, putting asylum claimants in mandatory detention, dramatically reducing the possibility of any such person gaining a path to legal status.
Imagine arriving from a country like Sudan or Iraq, after having already undergone torture or other human rights violations, and being put into the brutal private American detention system, or in faraway county jails with hardened criminals, because you’re presumed to be a criminal before you’ve had a chance to prove your case, and with little prospect of eventual success. Mandatory detention for asylum seekers is indefinite and can last for years, despite several court rulings suggesting that indefinite detention is illegal.
Trump’s extreme disrespect for refugees and asylum claimants is strongly rooted in existing legislation. Indeed, it goes back to well-known instances in the 1950s -- under the moral panic then induced by communism and the Cold War -- with the courts upholding indefinite detention of refugees or returnees from Eastern Europe, even allowing them to be held on Ellis Island in a condition of permanent statelessness.
Next week: How the restrictions on the rights of immigrants also restrict the rights of American citizens