Tuesday, December 08, 2015

Like It Or Not, America's Immigration History Is Largely On Trump's Side

It runs counter to the U.S. Constitution. It's religious bigotry. It's stoking hatred. It goes against everything we stand for and believe in. It's a threat to our national security. Those were just a few of the reactions shared by persons of all political persuasions in reaction to Donald Trump's call for a temporary halt on Muslims entering the United States. Regardless of how you feel about Trump's position, the simple truth of the matter is that American history and immigration law is on Trump's side. What? Are you kidding? No, I'm not.

Most Americans' knowledge of American history is selective at best and grossly lacking at worst. One thing I've figured out from my observations of Trump is that he is better read and much better informed on such matters than his political opponents and his many detractors in the media. Anyone with a basic understanding of federal immigration and naturalization laws knows it's one area of the law where the courts have given Congress wide latitude to write a "uniform law" as they see fit, regardless of how discriminatory the laws may treat disfavored classes of immigrants.

The U.S. Constitution was barely a decade old before Congress enacted the Alien & Sedition Acts, which gave the President carte blanche to deport or imprison aliens deemed "dangerous to the peace and safety of the United States" during the French Revolution and an undeclared war against France. President Adams and his Federalist-controlled Congress also used the federal immigration law for self-preservation purposes by extending the residency requirement for naturalization from 5 years to 14 years because newer immigrants to the country were viewed as more likely to join Jefferson's Democratic-Republican Party. The Sedition Act severely curtailed the First Amendment and was used to imprison political opponents and members of the media who were critical of the federal government. Most of the laws were repealed when Jefferson and his political party came to power, but the Alien Enemies Act still survives. President Franklin Roosevelt relied upon it to round up Japanese-Americans and place them in concentration camps during World War II.

It wasn't until after the Civil War that Congress got down to the business of using its powers under the U.S. Constitution to restrict who was allowed to enter the country. Do you remember the Chinese Exclusion Act enacted to prevent the country from being over-run by cheap labor from China? Other groups were disfavored. Congress decided prostitutes should be barred. Persons convicted of crimes in their native countries were excluded for the first time. Labor unions convinced Congress to exclude contract laborers. Exceptions were made for doctors, domestic servants and some hard-to-get workers. The mentally ill were excluded as were epileptics. Anyone not capable of earning their own living was excluded. Persons with certain communicable diseases have been excluded. We've excluded Nazis, communists and persons advocating the overthrow of the government.

Surprisingly, Congress didn't get around to enacting annual quotas on the number of immigrant visas until the 1920s. The majority of quotas were limited to immigrants from northwestern Europe. A smaller number was allowed for eastern and southern Europe, while only a handful of visas were made available to all of Asia and Africa. Later laws placed per country limits that naturally favored nationalities with a larger presence in America and substantially lowered the overall number of immigrant visas that could be issued annually. It wasn't until after World War II that accommodations in the law were allowed to provide preferential treatment above the annual quota limits to immediate relatives of U.S. citizens to accommodate all the war brides. The Refugee Relief Act, which has been in the news of late because of the discussion surrounding Syrian immigrants, was not enacted until 1953, allowing for the resettlement of refugees in the U.S. without regard to the quota system. The quota system is largely the reason Muslim immigration to the U.S. has been relatively low historically compared to other religious groups.

Beyond specific acts of Congress, the courts have given the federal agencies charged with implementing and enforcing the nation's immigration and naturalization laws great deference in establishing rules and regulations carrying out the Immigration and Naturalization Act. Immigration practitioners have long been frustrated by agency actions from time to time that seem to single out specific groups of immigrants for differing treatment based on the preferences of the person occupying the White House. Laws used as a club to keep out some immigrants later become meaningless in the absence of meaningful enforcement. Following the Iranian hostage crisis in 1979, President Jimmy Carter invalidated all visas issued to Iranian citizens. About 50,000 students studying in the United States were ordered to report to local immigration offices to face deportation from the country. That was a harsh order for Iranians in the United States whose loyalties lied with the toppled Shah's regime. Hundreds of thousands of Iranians sought and obtained asylum in the U.S. for fear of retribution upon their return to Iran.

Most recently in the aftermath of the 9/11 terrorist acts, the Department of Justice initiated a special registration system, the National Security Entry-Exit Registration System (NSEERS), which only applied to non-immigrant males who were 16 years or older from 25 countries with predominantly Muslim populations. NSEERS required special port-of-entry registration, fingerprinting and photographing, call-in registration and exit registration at the time of departure from the country. Severe penalties were imposed for non-compliance. More than 80,000 non-immigrants underwent registration under NSEERS at which they were subject to in-depth interrogations and periods of detention. Many who complied with the program were either deported or later unable to secure immigration benefits according to the program's critics. In 2011, the Obama administration de-listed the 25 countries and suspended the program; however, the NSEERS regulations are still intact and the program could be reactivated under a new administration.

Just as Obama has re-written regulations to loosen enforcement of immigration laws to benefit millions of aliens who unlawfully entered and remained in the United States, arguably sometimes to the detriment of national security, a President Trump could severely tighten up enforcement of the exact same laws and there's not a damn thing Congress can do to stop him short of re-writing the law and overriding a presidential veto. If a President Trump invoked national security concerns based on terrorism concerns for temporarily denying or delaying the issuance of visas to immigrants from Middle Eastern and other predominantly Muslim nations, history and the law is squarely on his side regardless of all the howling and screaming about Trump's position. I would add, however, that doing so would have little effect because of the visa waiver program the U.S. has with many European countries, making it easy for foreigners with bad intentions to board a plane and enter the country with nothing more than a passport.


Greg Wright said...

Clearly, our government has let us down and does not have a well thought out plan to defeat ISIS and related Moslem plans to kill us. The Moslem community is very quiet and apparently has done little or nothing to isolate these elements. There is little to support the notion that Moslems are loyal Americans that support our culture and traditions. Trump's suggestion should be considered as a temporary matter until we can get ahead of these growing threats to our safety.

Gary R. Welsh said...

Any meaningful discussion of the issue has to look at the root causes, which includes Western governments like the United States meddling in the internal affairs of countries where we have no business imposing ourselves. The threat wouldn't exist but for our meddling, including the funding, arming and training of the very people creating turmoil throughout the Muslim world, Europe and elsewhere. Do people in some parts of the world hate us? Yes, but our policies bred that hatred. To the people running our government, it's just a geopolitical game to justify the existence of the permanent national security/military-industrial complex. It's impossible to discuss the issue intelligently in this country because the mainstream media is nothing but a propaganda machine for the national security state. Neither major political party allows dissidents within its ranks to tell the truth. The two parties represent the interests of the national security state, not the people.

Flogger said...

I would agree with you immigration into America is largely a case of who do you want in. American Historical Amnesia is evident in all this discussion on Muslim Immigration. After World War 1 France and the UK grabbed up the parts of the old Ottoman Empire, what is today from Turkey south to the Arabian Gulf. These countries they carved out were de-facto colonies. The obvious importance of them was oil. There was certainly no intent by the West to allow full freedom, instead what amounted to puppet dictatorships were set up.

The USA and the British engineered the coup in Iran that over threw an elected government in 1953 and installed rule by the Shah. We know how that ended up. There was the Iran-Iraq War in the 1980's where the USA played both sides. GWB's Gulf War 2 ignited the most recent violation, and Obama, $hillary, and Kerry have poured gas on the fire by over throwing Ghaddafi, the elected government in Egypt and then the attempted over throw of Assad in Syria.

The Trumpet, $hillary and the McMega-Media want you to forget the part played out by the USA. Does any really think that if Moderate Muslims here in the USA went to the White House or Congress and said stop supporting the Mid-East Arab dictatorships and demand free elections that would happen??

Paul K. Ogden said...

I am not aware of any time in American history that we denied travel to the U.S. based on a person's religion. That is what Trump is proposing.

Gary R. Welsh said...

We've definitely done it based on nationality/ethnicity. Muslim immigration to this country has been historically low compared to other religions because of how our immigration laws historically limited who could and could not enter the country as immigrants. For many years, there were only 1,000 immigrant visas issued annually for all of Asia and Africa compared to the hundreds of thousands issued to Europeans and Latin Americans. Whether you can easily get a tourist visa to enter this country varies dramatically from country to country, Paul. Young, single persons from certain countries are routinely denied as a matter of policy.

LamLawIndy said...

The First Amendment obviously applies to US citizens and those who are present in the US.

Question: Would a non-citizen or non-resident SEEKING TO ENTER the US (by definition outside of it) even have standing to challenge any such travel ban?

Greg Wright said...

Unfortunately, for many, it will take a "Pearl Harbor" event to convince them of the urgency of the times.

Gary R. Welsh said...

9/11 was supposed to be a Pearl Harbor event, Greg, or at least that was the intent behind those who planned and executed it. I think those were Paul Wolfowitz' words.

Gary R. Welsh said...

Carlos, The Supreme Court follows the doctrine of “consular nonreviewability,” which provides that that courts generally have no power to review decisions of consular officers. This is based on a view that the Constitution grants Congress and the President extremely broad power of the admission and exclusion of noncitizens, which leaves little power for the courts. There are some exceptions where court challenges are allowed, such as when the denial impacts the constitutional rights of a U.S. citizen, or the consulate simply fails to act or provide an explanation for a denial.

Linda said...

Regarding the Chinese ban, religion was a factor mentioned by a Senator for wanting the ban.