Immigration and Alienage

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The ambivalence that characterizes today's national policies toward immigration had antecedents in the colonial era. Although the declaration of independence complained that the king and Privy Council had tried "to prevent the population of these states," many of the colonies had resisted Roman Catholic immigration, and in 1776 some of them still resounded with expressions of nativist resentment against populations that were non-English. The nation is justly proud of its tradition as a refuge for the oppressed and persecuted. Yet American immigration policy, from colonial times to our own, has been dictated by the "native" majorities' perceptions of self-interest. The perceived need for settlers and workers hangs in precarious balance against the suspicions and hostilities that flow out of cultural differences. Congress decides how the balance shall be struck; in the field of immigration, constitutional law has placed few limits on governmental power.

For almost a century, Congress took little part in the regulation of immigration. Even the alien and sedition acts (1798), for all their spirit of partisan nativism, were not conceived as immigration restrictions. An early minimal state regulation of the immigration process survived challenge under the commerce clause in mayor of new york v. miln (1837), but more severe state regulations were held invalid in the passenger cases (1849). Direct state limits on immigration were held unconstitutional in Henderson v. New York (1875), the same year in which Congress adopted the first direct national restriction, forbidding immigration by convicts and prostitutes.

By 1875, Congress's constitutional power to control immigration had come to be seen as one aspect of its power to regulate foreign commerce. Later, the Supreme Court articulated a more sweeping doctrine: the power of the national government to control foreign affairs was inherent in the idea of nationhood and did not need explicit recognition in the Constitution. That doctrine eventually found its fullest expression in united states v. curtiss-wright export corp. (1936), but it had surfaced half a century earlier in the context of immigration. In chae chan ping v. united states (1889) the Court announced that if Congress "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, … its determination is conclusive upon the judiciary." Having cast itself in an acquiescent role, the Court in Nishimura Eiku v. United States (1892) justified nearly absolute congressional power over immigration as "inherent in sovereignty." An exceedingly inscrutable image of a national community now formally protected Congress's immigration decisions from effective constitutional challenge.

The law upheld in the Chae Chan Ping decision was the chinese exclusion act of 1882. In the years since 1850, some 300,000 Chinese had come to the Pacific Coast, most of them responding to active recruitment of labor for mines and railroad construction in the American West. By the 1860s Chinese had come to compose about nine percent of California's population, and an anti-Chinese crusade was in full cry, fueled by racism and fear. After a long campaign, the Chinese Exclusion Act suspended immigration from China for ten years, made the Chinese ineligible for citizenship—not even the strongest congressional supporters of unrestricted immigration could conceive of the Chinese as permanent members of the community—and imposed other restrictions on them.

Although the act was accompanied by unashamedly sinophobic rhetoric, it was ostensibly passed to protect citizen workers. So, too, was the federal legislation of 1882 that added new categories of prohibited immigrants—lunatics, idiots, and persons likely to become public charges—and went on to impose a head tax of fifty cents on each immigrant who entered the United States. Similar justifications were offered for the acts of 1885 and 1887, prohibiting payment for an immigrant's transportation to the United States in return for a promise of labor. This series of laws in the 1880s imposed the first severe restrictions on immigration in the nation's history.

The Supreme Court upheld the head tax, in the Head Money Cases (1884), on the basis of Congress's power to regulate foreign commerce—a theory broad enough to sustain the whole series of enactments. However, all the laws were ineffective by design. Congress left border inspections and collection of the head tax to state agencies, which largely ignored the laws. The contract labor laws exempted both skilled workers and domestics, along with foreigners residing temporarily in the country and "coincidentally" working here. The practical effect was to permit a continued disregard for the border and a deepening disrespect for the law, especially among Mexican laborers and the employers who recruited them.

From the 1880s on, a steady trickle of minor immigration restrictions issued from Congress. Paupers and polygamists were excluded, and then epileptics, professional beggars, and anarchists or persons believing in the violent overthrow of the government—the latter provisions a reaction to the assassination of President william mckinley. Not surprisingly, the next major immigration restrictions accompanied a new surge of nativism associated with a wave of immigration from eastern and southern Europe that began in the 1890s, encouraged by the demand for workers in a growing industrial economy. This nativist impulse was accelerated by world war i and reached a climax in the Red Scare of 1919–1920. Congress adopted a literacy test for immigrants in 1917, and in the early 1920s set in place a system of immigration quotas based on national origins. The quotas restricted the ethnic proportions of immigration to the ethnic proportions of the nation's population before 1890—that is, before the arrival of large numbers of eastern and southern Europeans. The quota system reflected some of the most respected "scientific" thought of the Progressive era; the racism that produced the Chinese Exclusion Act had broadened into Anglo-Saxonism, which extended its hostility and its assumptions of superiority beyond race to ethnicity.

The constitutionality of racial and ethnic restrictions on immigration was taken for granted in the 1920s. The Chae Chan Ping opinion had placed the whole matter outside the reach of substantive constitutional guarantees such as the equal protection of the laws. To say the very least, however, this position is in tension with the Supreme Court's modern treatment of racial discrimination. Yet no recent decision has reexamined the premises of Chae Chan Ping, and the Court's opinions continue to refer, as in Fiallo v. Bell (1977), to "the limited scope of judicial inquiry in immigration litigation." Nonetheless, the modern constitutional climate in race cases seems to have contributed to the abandonment, in 1965, of the national origins quota system. In its place Congress has adopted a single worldwide annual ceiling on immigration, with a system of preferences designed to protect the interests of citizens and of aliens who are already documented residents.

The substantive problem of squaring the nation's constitutional commitment to equal protection with the tradition of judicial deference to Congress on immigration matters has a procedural counterpart. The Nishimura Eiku decision held that the due process clause of the Fifth Amendment imposed no limits on the power of Congress to govern procedures for entry into the United States. A few years later, in Wong Wing v. United States (1896), the Supreme Court did hold that due process forbade enforcement of the immigration laws by sentencing aliens to hard labor. In the modern era, Landon v. Plascencia (1982) has recognized due process rights of a resident alien who was seeking readmission after a short trip to Mexico. But such constitutional limitations are rare; the judicial protection of aliens in the exclusion process mainly has taken the form of interpretations of the immigration statutes.

A notable recent example is Jean v. Nelson (1985), in which the Court confronted the practice of long-term detention, without parole, of Haitian aliens who had been taken into custody as they attempted to enter the country without permission. The detention was challenged as unconstitutional discrimination based on race or national origin. Rather than decide that issue, the Court approved a remand of the case to determine whether immigration officials were observing the statutes and regulations, which, in the Court's interpretation, required individualized parole decisions without such discrimination. Jean appears to reflect an increasing judicial reluctance to keep the exclusion process unfettered by due process considerations. It also strongly suggests that if the Congress were to revive explicit racial exclusions, the precedent of Chae Chan Ping would not prevent judicial examination of their constitutionality.

The interpretation of the United States Constitution concerning immigration has always been influenced by widely shared attitudes concerning the constitution of American society. Today's issues of immigration policy focus on the use of "temporary" workers from other countries. Central to this theme is the story of Mexican labor migration. After 1882 Mexican and Japanese workers, along with immigrants from eastern and southern Europe, were recruited to help fill the void left by the exclusion of the Chinese. When Japanese immigration was effectively closed in 1907, employers in the Southwest intensified the recruitment of Mexicans. Assisted by statutory exemptions and waivers, many employers grew rich on the backs of immigrants who were poor and powerless. When poor whites competed for menial jobs, however—as after the crash of 1929—hundreds of thousands of Mexican workers were deported.

The pattern is repeated, from world war ii through the 1942–1964 Bracero Program (admitting temporary workers) and beyond, in a cycle that has not yet ended: Mexican workers are recruited when they serve the needs of domestic employers, and expelled when their usefulness seems to decline. They fill jobs as needed, and at a low wage, but they are not to be allowed to burden local communities. The Bracero Program amounted to an official (but unacknowledged) program of undocumented Mexican migration. At a time when the Border Patrol might have made a real difference in curbing undocumented entry—and thus restricting American growers from employing undocumented workers—the agency's budget was cut. Since 1952, Congress has exempted employers from liability for employing undocumented workers.

The result of all these developments is that the cheapest labor in the United States has become almost exclusively the province of undocumented workers. An entrenched migratory culture now supplies workers from Mexico and other countries to fill low-paying and socially undesirable jobs. If recruitment has become unnecessary, effective enforcement of formal immigration law has become virtually impossible. Very large numbers of undocumented workers are here to stay—and, predictably, America's long-standing ambivalence toward immigration is translated into a paradox of constitutional law. On the one hand, government is to be given the widest powers to seek out and deport undocumented workers, including such far-reaching methods as border searches and the factory sweeps approved in Immigration and Naturalization Service v. Delgado (1984). On the other hand, plyler v. doe (1982), holding it unconstitutional for Texas to deny free public education to children of the undocumented, almost certainly rested on the premise that most of those children are going to remain part of the American community, whether or not Texas chooses to educate them. The Plyler decision is one of major potential importance for the definition of the boundaries of that community, and for the recognition and fulfillment of the national community's concrete responsibilities to all its members.

Gerald P. LÓpez

Kenneth L. Karst


Gordon, Charles and Rosenfeld, Harry N. 1985 Immigration Law and Procedure, Rev. ed. Vol. 1. New York: Matthew Bender.

Lopez, Gerald P. 1981 Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy. UCLA Law Review 28:615–714.

Note 1983 Developments in the Law—Immigration and the Rights of Aliens. Harvard Law Review 96:1286–1465.

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Immigration and Alienage

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Immigration and Alienage