The Power to Ban or Deport "Subversives"
By: Senator Patrick McCarran and Representative Francis Walter
Date: Legislation passed by the U.S. Congress on June 11, 1952; presidential veto overridden June 27, 1952; effective December 24, 1952.
Source: Immigration and Nationality Act, Public Law 82-414, U.S. Code, Title 8, Section 212 (a)(3)(B).
About the Author: Patrick Anthony McCarran (1876–1954) was a Democratic senator from Nevada. After a distinguished career as a lawyer and jurist, he was elected to the Senate in 1933, where he served until his death. Francis Eugene Walter (1894–1963) was a Democratic congressional representative from Pennsylvania from 1933 until his death.
The Immigration and Nationality Act (INA) of 1952, generally called the McCarran-Walter Act after its congressional sponsors, was the product of Cold War (1945–1991) tensions and the emergence of African and Asian nations from colonialism in the wake of World War II.
The act created a quota system for immigration based on racial and ethnic categories and national origins, though it was not the first American law to do so. Beginning with the Chinese Exclusion Act of 1882 and continuing with the Asia Barred Zone Act of 1917 (directed primarily at Southeast Asians and Pacific Islanders), the National Origins Act of 1924 (directed primarily at the Japanese and eastern and southern Europeans), and the Tydings-McDuffie Act of 1934 (directed primarily at Filipinos), the United States had long tried to exclude some immigrant groups. In the early 1950s, with the growing influence of the Soviet Union, the takeover by Communists in China in 1949, and the start of the Korean War in 1950, a major goal of U.S. immigration policy was to exclude potential subversives and communists perceived as a threat to American security.
In 1950, Senator Pat McCarran, head of the Senate Judiciary Committee's Internal Security Subcommittee, had sponsored the Internal Security Act, which required members of the Communist Party to register with the U.S. attorney general. President Harry Truman (1884–1972) vetoed the bill, but Congress overrode the veto. Then in 1952, McCarran joined Representative Francis Walter, later chair of the House Committee on Un-American Activities, in sponsoring the INA.
The INA had two goals. One was to update and codify existing immigration law, particularly the 1924 National Origins Act. The INA retained the quota system of the 1924 act while lifting exclusions directed at Asians and including preferences for the relatives of people already living in the United States as well as those with special employment skills. The second INA goal involved including provisions to address subversion, allowing the government to exclude or deport anyone whose activities or intentions were regarded as detrimental to U.S. security.
Accordingly, Section 212 of the act, a portion of which is reproduced below, defined "terrorist activity" that was grounds for exclusion or deportation.
Terrorist Activity Defined As used in this Act, the term "terrorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
- The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
- The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
- A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.
- An assassination.
- The use of any
- biological agent, chemical agent, or nuclear weapon or device, or
- explosive or firearm (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
- A threat, attempt, or conspiracy to do any of the foregoing.
The term "engage in terrorist activity" means to commit, in an individual capacity or as a member of an organization, an act of terrorist activity or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time, including any of the following acts:
- The preparation or planning of a terrorist activity.
- The gathering of information on potential targets for terrorist activity.
- The providing of any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity.
- The soliciting of funds or other things of value for terrorist activity or for any terrorist organization.
- The solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorist activity.
Congress passed the McCarran-Walter Act on June 11, 1952. President Truman, who throughout his administration had expressed reservations about any bill or measure based on race or ideology, vetoed the bill, but Congress overrode the veto on June 27, and the law went into effect on December 24, 1952.
Almost immediately, opponents of the law called for its repeal or modification. They were concerned because, although the new law corrected some of the injustices of earlier immigration law, it still favored northern and western European immigrants over those from Asia and would exclude or deport people on the basis of opinions or beliefs rather than actions. Truman himself shared these concerns, so in September 1952, before the law even took effect, he created the Presidential Commission on Immigration and Naturalization, which recommended relaxing some of the security provisions of the act. In response, McCarran accused the commission of harboring communist sympathizers.
In time, some of the provisions of the McCarran-Walter Act would be repealed. In 1960, Congress eliminated ideological grounds for deportation, and the 1965 Immigration Act dismantled the quota system, creating a uniform cap of 20,000 immigrants from all countries.
Nonetheless, many provisions of the McCarran-Walter Act continue to guide U.S. immigration policy in the twenty-first century. In particular, the act is still used to define "terrorist activity," and the U.S. Secretary of State continues to cite the act in defining foreign terrorist organizations (FTOs). In October 2001, for example, in the wake of the September 11 terrorist attacks that year, the Office of the Coordinator for Counterterrorism cited the McCarran-Walter Act in defining twenty-eight FTOs and specifying procedures for adding to, or removing any such organization from the list. Al-Qaeda, the group responsible for the September 11 attacks, had been added to the list in 1999.
Thus, for example, the coordinator for counterterrorism stated that, under the provisions of the INA, "It is unlawful for a person in the United States or subject to the jurisdiction of the United States to provide funds or other material support to a designated FTO"; "Representatives and certain members of a designated FTO, if they are aliens, can be denied visas or excluded from the United States"; and "U.S. financial institutions must block funds of designated FTO's and their agents and report the blockage to the Office of Foreign Assets Control, U.S. Department of the Treasury."
Tichenor, Daniel J. Dividing Lines: The Politics of Immigration Control in America. Princeton, NJ: Princeton University Press, 2002.
Campi, Alicia J. "The McCarran-Walter Act: A Contradictory Legacy on Race, Quotas, and Ideology." Immigration Policy Briefs (June 2004). Available online from <http://www.ailf.org/ipc/mccarranwalterprint.asp> (accessed May 16, 2005).
Cole, David D. "Enemy Aliens." Stanford Law Review 54 (2002): 953–1004.
Immigration and Nationality Act. http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-22?f=templates&fn=document-frame.htm#slb-act (accessed May 16, 2005).