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Border control did not always dictate immigration policy.
This summer the House Subcommittee on International Terrorism and Nonproliferation held public hearings on “Border Vulnerabilities and International Terrorism.” The goal was to build support for the enforcement-focused immigration-reform legislation passed by the House in December 2005. At the hearings, a border-patrol officer warned that terrorists would try to enter the United States disguised as Mexican illegal aliens. They might, he suggested, spend a few months in Mexico learning Spanish and tanning their skin. Then, “dressed like Mexicans,” they would use established alien-smuggling networks to sneak across the border into the United States.
The particular image may be far-fetched, but national security has become a potent justification in the push for immigration reform. The argument that America has “lost control” of its southern border rallies support for a strong enforcement policy, even among those who are sympathetic to Mexican immigrants. Immigration policy is a complex matter, involving disparate interest groups and myriad economic and cultural factors. But few question the need for border control as an element of national sovereignty. Sovereignty—the authority of a state to control what happens in its territory—is the bedrock of international order. And it is central to the conventional understanding of sovereignty that the nation—every nation—has, in the first instance, the absolute right to say who may enter and who may not. That is why many Americans are uncomfortable with legalizing the status of the undocumented. It’s not just a matter of rewarding lawbreakers; it seems to undermine something fundamental to the very existence of a nation.
The strict control of borders has never been absolute, either in the principles or practice of American immigration policy.
But strict control of borders has never been absolute, either in the principles or practice of American immigration policy. Open borders were the legal norm until the late 19th century. That changed in the early 20th century, but even then there were radically different policies toward Europe, Asia, and the Western Hemisphere. The differences had less to do with assertions of sovereignty than with prevailing ideas about foreign and domestic policy, as well as racial equality—or inequality. Sometimes debates about policy went as far as to give weight to the concerns of people outside the country.
If we are going to move the current debate from sweeping abstractions about sovereignty—and corresponding anxieties about loss of control—to concerns about human impact on both sides of the border, we would do well to start by understanding this complex and shifting history.
• • •
Before the late 19th century immigration to the United States was virtually unrestricted. As a colony and then as a new developing nation, America needed settlers and laborers (including slaves and servants). Not only was the door open, for free white persons there were positive incentives for immigrating, like easy access to land and naturalization. There were moments of opposition to immigration, such as the Alien and Sedition Acts (1798–1802) and the Know-Nothing Party’s crusade against the Irish and other Catholics (1850s) but they were short-lived, even as they set precedents for linking nativism with political and religious intolerance.
As a colony and then as a new developing nation, America needed settlers and laborers (including slaves and servants).
After the Civil War the nation’s expanding economy drew laborers from around the world, part of a global migration from capitalism’s rural peripheries to its industrializing core. But beginning in the late 19th century the United States adopted different immigration and border policies toward Europe, Asia, and the Western Hemisphere, shaped by the different histories of domestic politics and foreign relations.
In the late 19th century Chinese and other Asian migrants arriving on the Pacific Coast were similar to their European counterparts arriving in the East—they all came to work. But in California, Asians collided with the racial imperatives of American manifest destiny, the 19th-century ideology of continental expansion that declared the West the domain of Anglo-Saxon civilization. Asia, too, was already a site for western colonial expansion, adding to Euro-Americans’ sense of superiority. For Asians, U.S. immigration policy would be exclusionary, beginning with the Chinese (1875–1882), extending to other Asians with the creation of a “barred zone” in 1917 (Afghanistan to the Pacific), and ending with the Japanese in 1924.
It was only with the Chinese exclusion that the U.S. Supreme Court invoked national sovereignty as the guiding principle of immigration policy and gave Congress the authority to enforce it. Before the Civil War immigration was regulated by the states, since the South would not brook federal interference over the movement of labor. When immigration came under federal control after the Civil War it was understood to fall under the Constitution’s Commerce Clause—as laborers, migrants were easily imagined as “articles of commerce.” But Chinese exclusion made it necessary to justify why some people were welcome and others were not. In 1889, in the Chinese Exclusion Case (Chae Chan Ping v. U.S.), the Supreme Court ruled that Congress had the absolute authority—what it called “plenary power"—to decide. Aliens, said the court in Fong Yue Ting v. U.S. (1893), “enter and remain in the United States only with the license, permission, and sufferance of Congress.”
In 1924 Congress extended numerical restrictions to European immigration as well, limiting it to 15 percent of the pre-World War I annual average, with the smallest allotments going to the countries of southern and eastern Europe. The “national origin” quotas were aimed against Italians, Slavs, and Jews, whom old-line American Protestants blamed for the social ills of the time: urban slums, class conflict, and political radicalism.
It was only with the Chinese exclusion that the Supreme Court invoked national sovereignty as the guiding principle of immigration policy and gave Congress the authority to enforce it.
Writing in 1926, the Chicago sociologist Robert E. Park astutely discerned the difference in attitude toward America’s Pacific and Atlantic borders. Referring to Asian exclusion Park wrote, “These laws have created on our Western Coast a barrier to immigration that is distinctly racial. Its purpose is not merely to limit [as with Europe] but to stop immigration from Asia. It is as if we had said: Europe, of which after all America is a mere western projection, ends here. The Pacific Coast is our racial frontier.”
While practicing exclusion toward Asia and restriction toward Europe, Congress imposed no numerical restrictions on immigration from the countries of the Western Hemisphere in the early 20th century. Congress’s official support for Pan-American open borders is telling, and its history and end offer us another context for understanding current proposals for immigration reform.
To be sure, there were advocates for excluding or restricting Mexican immigration in the 1920s. The nativists, who opposed Asians and southern and eastern Europeans as racial undesirables, also opposed Mexicans, whom they considered an unstable “mongrel race.” But two factors trumped Western Hemisphere quotas.
First, by 1920 large-scale production in the Southwest of fruits and vegetables for a national market was poised for takeoff, thanks to the clearing of land (done by Mexican-Americans and Mexican immigrants during the 1910s), improvements in irrigation technology, and the invention of the refrigerated freight car. The demands for agricultural labor were different from those in manufacturing. Mass European immigration had enabled an enormous expansion in manufacturing capacity in the late 19th and early 20th centuries. But by 1920 increases in productivity came from technological advances rather than sheer increases in the size of the work force. That is why business interests did not oppose restrictions on immigration from Europe.
In contrast, the new “factories in the field” needed a big work force, and a mobile and seasonal one at that. Ideally, growers wanted a surplus supply to keep wages low and harvest time short. During the ’20s the southwestern migratory agricultural work force drew large numbers of new immigrants from Mexico as well as more established immigrants and Mexican-Americans. They worked two major intrastate migrant streams in California and Texas while smaller streams followed the cotton crops in Arizona and New Mexico and reached northward to sugar-beet fields in Colorado, Michigan, and Montana. Between 1920 and 1929 the ethnic Mexican population doubled to 1.4 million.
Second, the State Department was perhaps even more influential in pressuring Congress to exempt the Western Hemisphere from quotas. Its concern was not the domestic agricultural labor market but with American diplomatic and business relations. By the turn of the 20th century, with growing U.S. commercial interests in Latin America and the Caribbean—especially in Mexico (oil), Cuba (sugar), and Central America (fruit)—Washington began moving away from the crudely interventionist dollar diplomacy of Theodore Roosevelt and Taft toward a softer Pan-Americanism and a “good neighbor” policy. In that context immigration quotas would have been seen as an unfriendly act.
Despite the absence of numerical quotas on Western Hemisphere immigration, the general regime of restriction adopted in 1924 weighed heavily upon Mexicans. The new order required of each immigrant a passport, visa, head-tax, and inspection at an official port of entry. Many Mexicans, unable to afford the visa fee and head tax, avoided the process and crossed the border informally, as they had done for years. But now their presence in the United States was illegal. Border enforcement, which had historically targeted excludable Europeans and Chinese trying to sneak into the country from Mexico, shifted to apprehending Mexicans. The result was a nearly ten-fold increase in the number of Mexicans deported between 1925 and 1929.
The nativists, who opposed Asians and southern and eastern Europeans as racial undesirables, also opposed Mexicans, whom they considered an unstable “mongrel race.”
The United States’s other continental neighbor, Canada, was also formally exempt from national-origins quotas. The border between the United States and Canada had many similarities to the southern border: both were long and difficult to patrol; both had a history of informal crossings by visitors and laborers. But practical policy toward the Canadian border was different. There was less anxiety about Canadian and European migrants in the north; even with ethnic job competition these white immigrants were able to establish themselves. The border patrol did not make any significant efforts to interrogate, apprehend, and deport in the northern border area. Instead, by concentrating border-patrol forces in the Southwest, the government ensured that more Mexicans would be deported than Canadians and Europeans.
Growers in the Southwest quickly learned that undocumented migration was not necessarily bad for business. The border patrol could not possibly stop all unauthorized entries along the 2,000-mile-long boundary. Although apprehensions sometimes temporarily disrupted production or created labor shortages, ultimately illegal immigration served the interests of agribusiness by creating a vulnerable alien work force.
Although the State Department would not support formal quotas in the Western Hemisphere, it appeased nativists by instituting administrative means to restrict immigration from Mexico. In 1929 it began to use the provision barring entry to noncitizens who are “likely to become a public charge” to refuse visas to all Mexican laborers save for those with prior residence in the United States. That put prospective immigrants in a Catch-22, because showing a promise of employment violated the ban on importing contract labor. The policy served to guarantee that undocumented migration would be a prominent feature of southwestern life. The threat of deportation created a climate of suspicion and harassment, especially in the border areas. In Texas the border patrol subjected the growing ethnic Mexican population to racial profiling, with thousands of people interrogated for every person actually arrested for deportation. Mexicans were also subject to Jim Crow segregation, excluded from all-white primary elections, white public schools, and white accommodations, with public restrooms marked “colored men and hombres.”
Thus, the border at the Rio Grande was formally open to immigration and easy to cross—but, paradoxically, only without documents. The Southwest became another kind of racial frontier, where Mexicans were welcome as cheap and disposable labor but not as members of the polity. Mexican migration was managed less by the general immigration law than by ad hoc programs developed according to need: 400,000 repatriated by county welfare bureaus during the Depression, four million imported as agricultural guest workers under the bracero program from World War II through the early 1960s. Mexicans were also largely excluded from administrative programs designed to legalize European illegal immigrants, adding to the public perception that associated “illegal” with “Mexican.”
• • •
Although the double standard grew in practice, official support for Pan-Americanism and the exemption of Western Hemisphere nations from immigration quotas continued until 1965. With the Hart-Celler Act, Congress repealed the discriminatory national-origins quotas and instituted a policy based on individual qualifications (with preferences for professionals and family members of citizens and permanent residents) and with a maximum of 20,000 annual admissions for every country. President Lyndon B. Johnson signed the law in a ceremony held at the foot of the Statue of Liberty, declaring it consistent with the nation’s democratic tradition that “values and rewards each man on the basis of his merit as a man.”
The emphasis on individual merit and equal treatment of all countries resonated with both domestic civil-rights politics and Cold War foreign policy.
The emphasis on individual merit and equal treatment of all countries resonated with both domestic civil-rights politics (the Civil Rights Act was passed in 1964) and Cold War foreign policy. The liberal coalition that had fought for immigration reform brought together the second generation of American Jews, Italian Americans, and other Euro-American ethnics who came of age politically in the World War II years. They saw the national-origin quotas as an insult to their own status, and hence immigration reform as their own civil-rights movement, their quest for equal standing in American society. Indeed, inspired by the black civil-rights movement, many Euro-American ethnics believed they were participating in the same grand cause for a pluralistic society based on racial and religious tolerance.
Immigration reformers also believed the national-origin quotas were bad for foreign policy, just as Jim Crow segregation damaged America’s credibility as leader of the free world. Such Cold War allies as Italy and Greece smarted from their low immigration quotas. The stakes were particularly high stakes in Asia, for although the Asiatic exclusion laws had been repealed by 1952 the Asian countries had the lowest quotas of all (105 in Japan, 50 in the Philippines).
While the Hart-Celler Act did ease immigration from Europe and Asia, it marked the end of open borders in the Western Hemisphere. Throughout the 1950s and early 1960s, legislation repealing the national-origin quotas introduced by Herbert Lehman and Hubert Humphrey and by Presidents Kennedy and Johnson all extended the Western Hemisphere exemption, citing the long-standing policy of Pan-Americanism and good-neighbor relations. But support for the exemption collapsed in the final negotiations of the Hart-Celler bill. Moderates in Congress—notably Senators Sam Ervin (D-IN) and Everett Dirksen (R-IL) and Rep. Michael Feighan (D-OH)—demanded numerical quotas for Western Hemisphere immigration as the condition for supporting the repeal of national-origin quotas. Citing demographers’ predictions that a population explosion in Latin America was imminent, they wanted formal restrictions.
Congress could have predicted that a formal quota would result in yet more undocumented immigration. Illegal entries from Mexico had already started increasing as the bracero program wound down, ending in 1964 with growing criticism that it abused Mexican nationals while depressing domestic-farm wages. But only a few reservations were expressed. Southwestern growers did not oppose quotas, nor did they wish a return to the bracero program (which they thought was too bureaucratic): they were content using undocumented workers. Reformers’ understanding of the agricultural labor market, which was not governed by federal labor standards, and their commitment to Pan-Americanism were weak. In fact, Pan-Americanism didn’t have much chance in an atmosphere where the symbolism of immigration reform was all about “equal treatment.” In this context, exempting the Western Hemisphere from quotas seemed like a form of favoritism. The political history recounted here should make clear, though, that an immigration policy based on equal quotas for all countries has had disparate and unequal effects.
When Hart-Celler went into effect in 1968 it included a global ceiling on annual immigration of 290,000, including 120,000 from the Western Hemisphere. Although the law limited each country to 20,000, it initially gave 40,000 each to Mexico and Canada, the two largest sending countries in the Americas. With western and southwestern agriculture still drawing labor from Mexico, the effect was immediate and severe: the number of deportations to Mexico increased by 40 percent in 1968, to 151,000. In 1976, when Congress applied the 20,000-per-country quota rule to Mexico and Canada, the U.S. expelled 781,000 Mexicans. By comparison, the total number of apprehensions for all other parts of the world combined remained below 100,000 a year.
Southwestern growers did not oppose quotas: they were content using undocumented workers.
By the early 1980s there was already talk about the southern border being “out of control.” The 1986 Immigration Reform and Control Act attempted to address the accretion of the undocumented population with a combination of legalization, border enforcement, and employer sanctions. Nearly three million people regularized their status under the act. But it was spectacularly unsuccessful at preventing further unauthorized entries. Employer sanctions were never enforced. The militarization of sections of the border pushed illegal entry to dangerous remote locations. By the turn of the 21st century there were some 500 deaths a year in the desert.
• • •
It didn’t have to be this way. In fact, the legislative history of Hart-Celler includes another bill, also sponsored by Senator Philip Hart (D-MI), that was conceived in an altogether different spirit and that throws the assumptions of our current policy into stark relief.
In the early 1960s Hart introduced legislation based on a formula that took into account the needs of refugees and emigrating countries. His plan left the countries of the Western Hemisphere outside the quotas; for the rest of the world he set a total annual limit of 250,000. The plan allocated 20 percent of that quota for refugees and the balance to countries in proportion to the size of their population (32 percent) and in proportion to their previous emigration to the United States (48 percent). Under Hart’s plan, only Great Britain would have received a reduced quota.
Hart’s proposal is noteworthy because it did not assume a zero-sum conflict between the interests of Americans and the interests of people elsewhere. It took into account a variety of factors—human rights, the needs of other countries, historical regional ties in the Americas, and American citizens’ familial ties abroad. It was a thoughtful and flexible policy that, while not discarding the sovereign principle, did not make it absolute.
In fact, Hart credited the bill’s design to the American Immigration and Citizenship Committee, an ad hoc coalition that had sponsored a two-year-long research project to devise a “humanitarian and nondiscriminatory” immigration policy. The committee comprised many liberal organizations that had been active in immigration reform in the early and mid-1950s, such as the American Jewish Congress, the National Council of Catholic Charities, and the United Auto Workers, as well as a growing constituency of voluntary organizations with experience in refugee resettlement, such as the American Council for Nationalities Services and the New York Association for New Americans. The bill also bore the imprint of Hart’s chairmanship of the Senate Judiciary Committee’s subcommittee on refugees and escapees.
It didn't have to be this way. Another bill, one that aimed at creating a humanitarian and nondiscriminatory immigration policy, was floated.
Thirty-five Senators and 14 members of Congress cosponsored Hart’s bill. Life magazine lauded the provisions for refugee admissions and urged Congress to pass it “for humanity’s sake.” But President Kennedy’s staff opposed it and pressured Hart to introduce the administration’s more moderate bill, based on preference for professionals and family members, a limit of 20,000 per country, and with only three percent set aside for refugees.
Hart introduced the administration’s bill while trying to keep his own bill in play. In fact, neither bill was reported out until after the president died and the Johnson administration reintroduced Kennedy’s proposal. By that time, Hart’s original bill had been swept aside. Congress passed Hart-Celler in 1965 as a civil-rights immigration bill, its commitments to formal equality resulting in both greater liberalization and greater restriction.
The details of Hart’s old proposal are outdated, but not its animating principles. It shows that there is precedent for an immigration policy based on actual human needs and conditions rather than sweeping abstractions, for a policy that considers not American interests alone but the interests of other nations and people as well. There are now more than 40 million Mexicans, Central Americans, and other Latinos in the United States; perhaps six million lack legal status. Today they are the mainstay not only of farm labor in the Southwest, but also in food processing, construction day labor, hospitality services, janitorial services, domestic work, and other service occupations throughout the country. In these lower strata of the labor market, employers routinely flout federal and state labor standards of wages, hours, and safety. The racial frontier of the Southwest has thus been replicated over the last dozen years across the country. Immigration reform based on crisply defining and enforcing borders—rather than contexually addressing human interests—will make all this much worse.
Americans have generally been of two minds about the consequences of illegal immigration: we want to control the border, but we hesitate to execute mass deportations. That’s why our immigration policy moves in a cycle of enforcement and legalization. No matter what Congress decides this year (if it decides to do anything at all) the cycle of enforcement and legalization will continue unless we move to a different set of assumptions and goals, founded on human rights and shared interests. One thing is clear: election-season hype about terrorists disguised as illegal aliens will not encourage a serious discussion of immigration reform.
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