history of (my) disquisitions

Extended Border Control & Post Entry social control

Early on Kanstroom presents the framework of extended border control & post entry social control. My understanding of these two concepts actually evolved a bit just in writing this assignment, but I would offer that extended border control is about actual removals, and barriers to physical entry, while post entry social control is about deciding how you are allowed to live, and what class of person we want to accept into our country. The two intermingle quite a bit, but each new event or law we read about seemingly can be reduced to one or the other system.

Let's try to categorize some of the events and laws we've been reading about to test the robustness of the framework.

Extended Border Control:

• Palmer Raids:

The palmer raids, on their face, seemed to be extrajudicial when we think about everything we've been taught to expect in our interactions with police, the government, etc. Unwarranted arrests, no access to counsel for those who were rounded up, no access to family, and property seized and destroyed, again, without any warrant. That this could happen at all, much less be considered legal, has everything to do with a near-xenophobic militancy about controlling our borders.

• Early American border controls:

Kanstroom details several early colonial exclusion acts, including a Pennsylvania law that forced shipmasters to provide local authorities with passenger manifests and greeted newly arrived immigrants with a demand for a loyalty oath. Kanstroom points out the tension between the colonial need for population growth, and the perpetual wariness about outsiders. The manifests and oaths gave them both immediate and long-lasting ability to control their borders. The 1662 Law of Settlement and Removal dealt with intra-colony movement, and demonstrated the power of individual towns to exclude whomever they wished. This, as with nearly all immigration law, was disproportionately applied to the poor. With these, and several other examples, we can see how at both the micro and macro level early America were establishing strong border control mechanisms.

• Alien Friends & Alien Enemies acts:

Too blunt an instrument for social control, the Alien Friends and Alien Enemies acts gave the president incredible power to intern, refuse entry, and deport entire nationalities, races, and classes of persons, regardless of their status within the country, so long as they were not fully naturalized. This is the most incredible extension of border control I believe we've learned about so far in class, and though it wasn't leveraged as dramatically as the Federalists of the time envisioned, we still see the effects of them in our most notorious examples of border control: Japanese internment camps and Guantanamo Bay.

Post Entry Social Control:

• Transportation Systems:

Transporting unwanted populations, whether they be criminals or the poor, went beyond the citizen/non-citizen dichotomy. While banishment as a punishment may present as border control, I would actually argue that it is a social control that specifically seeks to rid the population of undesirables.

• Loyalty Oaths as a concept:

Loyalty Oaths came up over and over again in the first chapter of our book. Of course this is a form of social control because you are insisting that someone take an oath to be loyal to whatever ideals you deem important, but while that may seem reasonable on its face, it is actually more sinister. By getting a newly arrived immigrant to swear an oath, especially one that has ambiguous declarations, or ones to which it is difficult to adhere, you have put them in an immediate and precarious legal state. Any time you wish to harass or remove them, you can reference the oath, and likely find some transgression, no matter how minor, to expel them. This seems not unlike the recent case in the supreme court that was thankfully struck down, whereby deportation authorities wanted to be able to expel an immigrant for any mistake whatever on their application documents. The complexities and ambiguities of which allowed for similarly arbitrary enforcement.

• Plyer vs. Doe:

This case, while ultimately a win for immigrant rights, only reached the supreme court because officials were trying to deny access to education, a universal right for citizens, to the children of non-citizens. By controlling access to social services this act reveals itself to be based on social control.

• Antiterrorism and Effective Death Penalty Act & Illegal Immigration Reform and Immigrant Responsibility Act:

While I suspect that these two acts, only briefly touched upon in our text so far, likely fall into both categories, several of the specific examples seemed to dramatically alter the ability of immigration authorities to control immigrant lives. By retroactively altering the standards for criminal grounds for deportation, the immigration authorities not only expanded social control to a larger population, but they expanded it temporally as well, which is just kind of stunning.

Conclusion:

While I think that Kanstroom's framing of the deportation laws using the extended border control and post entry social control model makes sense and is useful, it is more nuanced than I realized while initially engaging with the text. Categorizing each event and law as one or the other showed me that we aren't talking about a dichotomy here. While the auto-banishment of Catholic priests in Virginia was pretty blatantly a border control issue, it was also an expression of social control over religious expression within their colony. Similarly, transportation systems were all about removing unwanted populations, typically the poor, criminal, or criminalized poor, yet, with provisions that punished any attempt at return, this also appears to be an issue of extended border control. Thus, I continue to find the distinction useful, but more so as a tool of analysis than as a rigid taxonomy.

Chinese exclusion to the second wave

From the Immigration Act of 1864 to the Quota Laws of the 1920s, the structure and distribution of immigration authority went through major changes, but inexorably marched toward centralized, unrestricted, unreviewable power. The era of Chinese exclusion worked out thorny issues of state vs. federal authority and the origins of plenary power while causing existential misery to thousands of Chinese lives. The second wave similarly developed around the collective misery of a hated nation of immigrants, Mexican laborers. However, with power consolidated, unlike the periods that came before, the second wave was focused on dramatically expanding that power. The twin specters of economic depression and global war set the stage for jingoistic, racist, rhetoric that in turn ushered in an era of vigilantism and broad, ambiguously defined deportation powers.

“The national mood had changed.”

Both the era of Chinese exclusion and the Second Wave featured the government actively recruiting immigrant laborers only to turn around and punish and criminalize their existence in this country. The Immigration Act of 1864 both opened the door to Chinese laborers and established the role of commissioner of immigration whose main duties were market the United States as a pleasant place to emigrate to for work (Kanstroom, 2007, p. 93). As the aftermath of the civil war revealed itself, there was a real need for a larger population to help pick up the pieces and rebuild. However, as Daniel Kanstroom tells us, within a decade “The national mood had changed.” (Kanstroom, 2007, p. 93). With the passage of the Page Act in 1875, the Chinese were suddenly the explicit targets of new exclusion laws.

Similarly, during the second wave, Mexican workers were explicitly recruited by the US government, and laws were passed and restrictions eased to facilitate their entry. The wave of Mexican immigration that followed established “a legal model and cultural mindset that endured for many decades” (Kanstroom, 2007, p. 156). Despite that model and mindset, the changes to immigration law in the Immigration Act of 1917, much like the turnabout that happened to Chinese laborers, suddenly changed the arrangement for Mexican workers. They were now subject to head taxes and literacy tests, and in 1924 laws were passed that abolished statutes of limitations for overstays and illegal entries (Kanstroom, 2007, p. 158).

The treatment of both Chinese and Mexican laborers is deplorable on its face, but also insidious. Consider that they were invited in by government and corporate interests, but the moment public opinion turned against them the very racism the government facilitated was fueled and leveraged to pass ever more extraordinary and abusive laws.

“Nevertheless, it remains the law.”

In the year following the Page Act, the Supreme Court used two cases, Chy Lung v. Freeman, & Hdnerson, et al. v. Mayor of New York, et al., to finally wrest deportation power from the states and place it firmly in the hands of congress. Using the commerce clause as its rationale, the court reasoned that allowing states to have unique exclusion and deportation laws could lead to incidents that would embroil the whole country in international controversy (Kanstroom, 2007, p. 94). By the time the federal government was named in the 1884 Head Money Cases, the rationale for plenary power had been at least internally established. The lawyers argued that control of immigration wasn’t constitutionally derived, but instead was implied by sovereignty. While the courts declined to rule on those grounds in that case, by the end of the 1880s the sovereignty argument would win the day.

Despite international law and immigration theory moving away from the harsh black and white of a government’s unrestricted authority to remove persons from a country, domestic US policy doubled-down on outdated, dictatorial plenary power. Justice Stephen Field, in a monumental decision in Chae Chan Ping v. United States, held that the power to deport was explicitly derived from sovereignty, and that as a result only the government, not the judiciary, were fit to decide who could stay in this country (Kanstroom, p. 96.). Thus established, the government, in a series of laws and actions, successfully grew their discretionary power of deportation. Kanstroom’s observation that despite vigorous criticism of that decision, “nevertheless, it remains the law” (Kanstroom, 2007, p. 96) becomes a baleful recurring theme, one that already reared its head in the Alien Enemies act, and will undoubtedly provide a grim throughline for this class right up to the present day, and will undoubtedly provide a grim throughline for this class right up to the present day.

The Chinese Exclusion era established a firm foundation for the massive expansion to follow. Though perhaps less ambitious, there were inklings of what was to come, like the public charge provision of the 1891 Immigration Act which first linked “post entry facts” to “pre-entry conditions” (Kanstroom, 2007, p. 125). The model that had developed, of using criminal cases to consolidate federal immigration authority would now be used to extend it. Leveraging a general, and likely overhyped, panic about crime in the 1910s, the 1917 Immigration Act focused on deportation of criminals, but defined applicable crimes in the broadest terms possible as “a crime involving moral turpitude.” Again, a much derided piece of law that “remains to this day” (Kanstroom, 2007, p. 135).

Same story, different goals.

Frankly, there is so much more to each period, and so much more to be said about the recurring judicial willful abdication of responsibility, but, it is not untrue to say that both the Chinese Exclusion era and the Second Wave were built on racism, judicial blindness in the face of criminalizing immigrants, and the victimization of invited workers. However, the results were slightly different. Kanstroom’s assertion that the second wave was an “expansion and refinement of modern deportation law” is absolutely correct, and it was facilitated by the consolidation and legitimization of unfettered federal immigration authority in the Chinese Exclusion era.

Putting it all together

Daniel Kanstroom is correct when he argues that the U.S. deportation system is a “100-plus years social experiment” that has done unfathomably more harm than good, is vicious and capricious in its administration, and points to the deeply ingrained impulse to expel the unwanted from our population. The history of deportation in the united states is the history of economic growth juxtaposed against eugenicist notions of an American race. The root of this history is explicitly racist, and much of the modern deportation legal framework appears to be the window dressing of legitimacy on a still deeply inhumane, dehumanizing process. Drawing on connections to economics, eugenics, and racial exclusion, I aim to explore Kanstroom’s idea of our “removal impulse”.

Roots of Removal

“Deportation, in sum, is now­—and always has been—about much more than border control. It implicates the concepts of belonging, cleansing, and scapegoating, as the very term “illegal alien” demonstrates…It renders the offender not simply a foreigner, but an expelled, banished, criminal foreigner—as complete an outcast as one can imagine.”

—Daniel Kanstroom, Deportation Nation, pp. 19-20

Kanstroom uses a quote from George Washington to underline the primal fear at the center of the entire history of immigration and deportation in the United States. Initially saying that both the privileged and victimized were welcome to emigrate to America, he concludes “if, by decency and propriety of conduct, they appear to merit the enjoyment.” (Kanstroom, 2007, p. 21) It wasn’t until finishing the book, and this class, that I could fully comprehend just how insidious that idea would become.

Washington’s vagaries of “propriety”, “decency”, and “merit” have long echoes in such standards as “crimes of moral turpitude” that are enshrined in deportation law today. That ambiguity is a rot at the core of our immigration regime and the courts have done us no favors by turning over interpretation of such equivocal terminology to government agencies with near unrestricted power to bend them to whatever need they may have.

The root of that abdication of judicial responsibility is the citizenship-as-membership model of early America (Kanstroom, 2017, p. 17). Early on the idea that citizens were a different class than non-citizens paved the way for the regularly upheld idea that the constitution, that font of an American Citizen’s rights, simply did not apply whatsoever to non-citizens. Thus, they were eternally at the mercy of the legislative and executive branches of government.

Immigrants, in fact, were at the mercy of just about everyone, including their employers.

Always Recruiting, Always Removing

“As for extended border control deportation…[i]t has functioned primarily as a labor control device, a kind of extra tool in the hands of large businesses…to provide a cheap, flexible, and largely rightless labor supply.”

—Daniel Kanstroom, Deportation Nation, p. 245

From the earliest days of American colonies, we actively recruited immigrant labor from abroad (Kanstroom, 2007, p. 30). More granularly, within individual states and even towns, non-resident laborers—referred to as transients in the 18^th century—were an economic necessity, while still kept at arm’s length by a society unwilling to offer rights of citizenship to those upon which they most depended (Kanstroom, 2007, p. 35). The struggle between economic growth and cultural isolationism seems to have been woven into the very fabric of our country.

Immigrants from China introduced a much more dramatic version of “other” in the mid-19^th century. In what would become a long-established pattern of recruiting and removal, the United States opened the door to Chinese immigrant labor contracts in the 1864 Immigration Act (Kanstroom, 2007, p. 93). Pushback began only a decade later with the passage of the Page Act which started to put exclusions on some Chinese immigrant laborers. Many others would follow, systematically restricting the rights of Chinese immigrants to ever naturalize, to own property, and even for the predominantly male immigrant population to bring their wives over to the United States. The recurring theme of each of these laws was to prevent the Chinese from gaining a foothold in the US.

Mexican immigrant laborers faced a similar fate that is still playing out today. The first Large scale recruiting of Mexican laborers began in 1917 to replace American labor that was lost when we entered WWI (Kanstroom, 2007, pp. 156-157). When soldiers returned, and the economy took a nosedive, both Mexican and Asian (with a particular focus on the Japanese this time) immigrants found themselves caught in a new wave of vitriol and vigilantism.

However, war would once again bring our government to embrace and actively recruit Mexican labor through the Bracero Program (Kanstroom, 2007, p. 219). Once again, however, soldiers returning from war, long-simmering racism, and economic changes incited a quick backlash. By 1951 the Presidential commission on Migratory Labor described Mexican laborers thus: “The…wetback traffic…is virtually an invasion.” (Kanstroom, 2007, p. 221). Perennial mass deportation operations starting with “Operation Wetback” and most recently “Operation Endgame” have hung over a once large, contributory, and legal Mexican immigrant labor population.

The pattern seems obvious, we recruit a large number of persons of a foreign nation with physical and cultural differences to our own, but quickly feel overwhelmed by the strangeness of our new guests, describe them as foreign invaders, racialize the immigration issues, and do everything in our power to marginalize and expel them.

The Moving Target of the American Race

“…current immigration policies have inspired a debate that requires the American people to decide if human beings who live and work among us are morally and legally equal to us.”

—Karla Mari McKanders, Immigration Enforcement and the Fugitive Slave Acts: Exploring Their Similarities p. 949

At the outset, I suggested that this was more than just about racism, however, but eugenic in nature. It is worth remembering that the Immigration Act of 1924 occurred under Calvin Coolidge, a president declared that “Nordics deteriorate when mixed with other races.” (Gray, 1999), and that “Biological laws tell us that certain divergent people will not mix or blend” (Chen, 2016, p. 74). Though he did complain about the parts of the bill related to Japanese exclusion, he did not attempt a veto, and did not seem to mind the bill’s most glaring racial bias. The Immigration Act of 1924 included national immigration quotas that explicitly aimed to turn back the clock on recent mass immigrations by basing those quotas on the racial and national makeup of the 1890 census (Dingatantrige Perera, 2017, HST 306B Lesson 4, slide 26).

If there were any questions about those policies being mere racism or isolationism, one of the opening lines from Edwin E. Grant’s 1925 article “Scum from the Melting Pot” should lay them to rest: “A systematic deportation not only eugenically cleanses America of a vicious element but the moral effect upon their native countries makes deportation of offenders, in an international sense, doubly worth while.” (Grant, 1925).

What is hideous, however, is that those eugenic ideas persist and influence both public debate and policy, while at the same time, this dehumanization of non-citizen workers continues to give employers free reign to exploit them.

Michelle Chen eloquently sums up these two ideas:

“…the concepts that eugenics introduced continue to color our immigration laws, from the debate over “securing the border” against external threats, to labor regulations that shut migrant workers out of basic rights and protections, to deportation policies that seek to expel people for “crimes of moral turpitude.” Restrictionists have routinely stereotyped Latino immigrants as miscreants, job stealers, or even environmental threats, and blamed them for taxing economic or natural resources. They’ve also framed immigrant children as parasitic spongers, birthed of hyperfertile “illegals.” Meanwhile skilled workers from overseas are hungrily imported through labor visa programs as cost-efficient “human capital” for U.S. firms.” (Chen, 2015, pp. 74-74)

While one might hope that the courts would intervene when race was made such an explicit factor in our deportation regime, Kanstroom shows us that extended border control is used as a lever against specific races, and the Supreme Court’s continued abdication of responsibility has permitted selective enforcement and selective prosecution (Kanstroom, 2007, p. 245). To be explicit, when it comes to non-citizens, racial profiling is legal and widely implemented.

6 Weeks of Bummers

When Deportation Nation arrived prior to this class starting, I began to read the introduction and was immediately engaged by a previously unknown frustration. When a co-worker asked me about my upcoming classes I said I was excited for History of Deportation, but it looked like it was probably going to be “6 weeks of bummers.” That was glib, to be sure, but not wrong. Kanstroom and the authors of other supplementary material offer little opportunity for hope, and when you consider the current mood of our executive branch and the long history of scapegoating immigrants for other societal ills, it doesn’t seem like things are going to get better.

While I was vaguely wary of our immigration and deportation regimes prior to taking this class, I have now lost any residual faith I may have had. As far as I can tell from what I’ve learned, our system is a trifecta of unending need for labor to grow the economy, eugenically coded racism, and a complete hand wave of the judiciary to do with non-citizens as we please. We have become a nation that lures ambitious immigrants in, only to use them, take advantage of their vulnerable legal status, and then cast them back out into the world, older, weaker, and poorer for their trouble.

References:

Chen, M. (2015) Fit for Citizenship? The Eugenics Movement and Immigration Policy. Dissent, 73-80.

Dingatantrige Perera, J. (2017) Lesson 4. HST 306B

Grant, E. W. (1925) Scum from the Melting-Pot. American Journal of Sociology 30, 641-651.

Gray, P. (1999) Cursed by Eugenics. Time Magazine.

Kanstroom, D. (2007) Deportation Nation. Cambridge, MA: Harvard University Press.

McKanders, K. M. (2012) Immigration Enforcement and the Fugitive Slave Acts: Exploring Their Similarities. Catholic University Law Review, 61(4), 922-953.