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Published online by Cambridge University Press: 26 February 2020
This essay surveys the changes and continuities in U.S. immigration law and policy between the Gilded Age and the 1990s–2010s. It points to how the administration of immigration law today is rooted in doctrines established in late nineteenth-century immigration cases. In particular, the essay connects current anxieties over immigration, borders, and national sovereignty to the “plenary power” doctrine that came out of the Supreme Court's decision in Chae Chan Ping v. United States (1889). Examining recent federal actions to “secure” the border and enforce immigration law, this essay begins to address the ways in which current policy continues to reflect Gilded Age anxieties about territory, sovereignty, migration, and diverse populations during an era of constantly shifting borders.
1 “Landed on Ellis Island,” New York Times, Jan. 2, 1892, 2. See also Kraut, Alan M., Silent Travelers: Germs, Genes, and the “Immigrant Menace” (Baltimore: Johns Hopkins University Press, 1994), 52–53Google Scholar.
2 Caitlin Dickerson and Manny Fernandez, “What's Behind the ‘Tender Age’ Shelters Opening for Young Migrants,” New York Times, June 20, 2018. More than 2,600 children were reportedly separated from their parents or guardians during the spring of 2018. Leslie Shapiro and Manas Sharma, “How Many Migrant Children Are Still Separated from Their Families?,” Washington Post, Aug. 30, 2018.
3 Dan Barry et al., “Cleaning Toilets, Following Rules: A Migrant Child's Days in Detention,” New York Times, July 14, 2018.
4 Molly Hennessy-Fiske, “Six Migrant Children Have Died in U.S. Custody. Here's What We Know about Them,” Washington Post, May 24, 2019. Investigations point to ill-equipped facilities and poor detention center conditions. Sheri Fink and Caitlin Dickerson, “Border Patrol Facilities Put Detained with Medical Conditions at Risk,” New York Times, Mar 5, 2019; Hannah Rappleye and Lisa Riordan Seville, “24 Immigrants Have Died in ICE Custody during the Trump Administration,” NBC News, June 9, 2019, www.nbcnews.com/politics/immigration/24-immigrants-have-died-ice-custody-during-trump-administration-n1015291 (accessed Jan. 2, 2020); Cedar Attanasio, Garance Burke, and Martha Mendoza, “Lawyers: 250 Children Held in Bad Conditions at Texas Border,” Associated Press, June 20, 2019, https://apnews.com/46da2dbe04f54adbb875cfbc06bbc615 (accessed Jan. 2, 2020).
5 Kraut, Silent Travelers, 66.
6 “Attorney General Sessions Delivers Remarks to the Largest Class of Immigration Judges in History for the Executive Office for Immigration Review (EOIR),” Office of Public Affairs, U.S. Department of Justice, Sept. 10, 2018, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-largest-class-immigration-judges-history (accessed Jan. 2, 2020).
7 Christopher Ingraham, “Sessions Says Family Separation is ‘Necessary’ to Keep the Country from Being ‘Overwhelmed.’ Federal Immigration Data Says Otherwise,” Washington Post, June 18, 2018.
8 “American Border Officials are Separating Migrant Families,” Economist, May 31, 2018.
9 Caitlin Dickerson, “Detention of Migrant Children Has Skyrocketed to Highest Levels Ever,” New York Times, Sept. 12, 2018.
10 See for example Chy Lung v. Freeman, 92 U.S. 275 (1875); Chae Chan Ping v. United States, 130 U.S. 581 (1889); Nishimura Ekiu v. United States, 142 U.S. 651 (1892); Fong Yue Ting v. United States, 149 U.S. 698 (1893).
11 Daniels, Roger, Guarding the Golden Door: American Immigration Policy and Immigrants since 1882 (New York: Hill & Wang, 2004), 5Google Scholar.
12 Ibid.; Jynnah Radford, “Key Findings About U.S. Immigrants,” Pew Research Center, June 17, 2019, http://www.pewresearch.org/fact-tank/2018/09/14/key-findings-about-u-s-immigrants (accessed Jan. 15, 2020).
13 Technically, the H-1B visa is a “nonimmigrant” temporary work visa, but it can provide a pathway to legal residency for applicants who desire to immigrate to the United States on a more permanent basis.
14 Norm Matloff, “Trump Is Right: Silicon Valley Is Using H1-B Visas to Pay Low Wages to Immigrants,” Huffington Post, Feb. 3, 2017; Nicole Torres, “The H-1B Visa Debate, Explained,” Harvard Business Review, May 4, 2017.
15 Lee, Erika, At America's Gates: Chinese Immigration during the Exclusion Era, 1882–1943 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar.
16 Higham, John, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New Brunswick, NJ: Rutgers University Press, 1955)Google Scholar; Jacobson, Matthew Frye, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge, MA: Harvard University Press, 1998)Google Scholar. See also Zolberg, Aristide R., A Nation by Design: Immigration Policy in the Fashioning of America (Cambridge, MA: Harvard University Press, 2006), 199–242Google Scholar; Benton-Cohen, Katherine, Inventing the Immigration Problem: The Dillingham Commission and Its Legacy (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar.
17 Schuck, Peter, “The Transformation of Immigration Law,” Columbia Law Review 84 (Jan. 1984), 6CrossRefGoogle Scholar.
18 It never took effect, however. A federal court ruled in 1997 that the proposition was an unconstitutional state scheme to regulate immigration, “an area exclusively reserved to the federal government.” League of United Latin American Citizens v. Wilson, 997 F. Supp. 1244 (C. D. CA, 1997), 1,259. On the long history of anti-Mexican racism and violence, see for example de León, Arnoldo, They Called Them Greasers: Anglo Attitudes toward Mexicans in Texas, 1821–1900 (Austin: University of Texas Press, 1983)Google Scholar; Carrigan, William D. and Webb, Clive, Forgotten Dead: Mob Violence against Mexicans in the United States, 1848–1928 (New York: Oxford University Press, 2013)Google Scholar; Martinez, Monica Muñoz, The Injustice Never Leaves You: Anti-Mexican Violence in Texas (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar. Following the Mexican Revolution (1910–20), which generated significant new streams of Mexican migration to the border, anti-Mexican antipathy gained increasing expression in U.S. immigration policy: the United States created the Border Patrol as part of the Immigration Bureau in the Department of Labor in 1924; began to criminalize unauthorized entry in 1929; and policed immigrants and Mexican American communities with deportation campaigns during the Great Depression and the years of the Bracero Program. Ngai, Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004), 56–90, 128–66Google Scholar; Hernández, Kelly Lytle, Migra! A History of the U.S. Border Patrol (Berkeley: University of California Press, 2010)Google Scholar; Goodman, Adam, “The Long History of Self-Deportation,” NACLA Report on the Americas 49 (Summer 2017), 152–58CrossRefGoogle Scholar.
19 “SB 1070 Four Years Later—Lessons Learned,” National Immigration Law Center, Apr. 23, 2014, https://www.nilc.org/issues/immigration-enforcement/sb-1070-lessons-learned/ (accessed Jan. 2, 2020). These state efforts have faced significant legal challenges as well, and have been stalled in appellate proceedings or modified into much weaker forms.
20 Pegler-Gordon, Anna, In Sight of America: Photography and the Development of U.S. Immigration Policy (Berkeley: University of California Press, 2009), 174–75Google Scholar; Jessica Bolter and Doris Meissner, “Crisis at the Border? Not by the Numbers,” Migration Policy Institute, June 2018, https://www.migrationpolicy.org/news/crisis-border-not-numbers (last accessed Jan. 2, 2020).
21 “The Cost of Immigration Enforcement and Border Security,” American Immigration Council, Oct. 14, 2019, https://www.americanimmigrationcouncil.org/research/the-cost-of-immigration-enforcement-and-border-security (accessed Jan. 15, 2020).
22 León, Jason De, The Land of Open Graves: Living and Dying on the Migrant Trail (Berkeley: University of California Press, 2015), 29Google Scholar.
23 Department of Homeland Security, “Table 39. Aliens Removed or Returned: Fiscal Years 1892 to 2014,” U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), Enforcement Integrated Database (EID), Oct. 2014, https://www.dhs.gov/immigration-statistics/yearbook/2014/table39 (accessed Jan. 2, 2020).
24 Mark Noferi, “Immigration Detention: Behind the Record Numbers,” Center for Migration Studies, https://cmsny.org/immigration-detention-behind-the-record-numbers (accessed Jan. 15, 2020).
25 John, Rachel St., Line in the Sand: A History of the Western U.S.-Mexico Border (Princeton: Princeton University Press, 2011), 2Google Scholar.
26 White, Richard, The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865–1896 (New York: Oxford University Press, 2017), 114Google Scholar.
27 See for example Gordon, Sarah Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002)Google Scholar; Hämäläinen, Pekka, The Comanche Empire (New Haven: Yale University Press), 2008Google Scholar; DeLay, Brian, War of a Thousand Deserts: Indian Raids and the U.S.-Mexican War (New Haven: Yale University Press), 2008Google Scholar.
28 Papers Relating to the Foreign Relations of the United States 1879–1880 (Washington, D.C.: Government Printing Office, 1880), 11–12, 349, 465, 964–65Google Scholar; Goodwin, C. C., “The Mormon Situation,” Harper's 63 (Oct. 1881), 756–63Google Scholar.
29 Warren, Louis S., God's Red Son: The Ghost Dance Religion and the Making of Modern America (New York: Basic Books, 2017)Google Scholar. As Warren compellingly explains, however, Wovoka's message was not one of outright resistance or rejection of American practices, but rather of indigenous adaptation to wage work and the new capitalist and industrial order in the United States.
30 Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889), 595.
31 Ibid. (emphasis added).
32 Ibid., 595–96.
33 More precisely, Beth Lew-Williams has recently argued that policy makers were ambivalent about barring Chinese immigration, and originally intended the 1882 law to merely “restrict” Chinese immigration. It was the anti-Chinese violence in the U.S. West, Lew-Williams argues, that compelled the federal government to expand the policy against Chinese immigration from one of “restriction” to one of “exclusion.” Lew-Williams, Beth, The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar.
34 Lee, At America's Gates.
35 For a detailed history of the judiciary's role in the administration of the Chinese Exclusion Acts, see Salyer, Lucy E., Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995)Google Scholar.
36 Chae Chan Ping v. United States, 603. See also Chin, Gabriel J., “Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power,” in Immigration Law Stories, eds. Martin, David A. and Schuck, Peter H. (New York: Foundation Press, 2005), 7–30Google Scholar; Salyer, Laws Harsh as Tigers, 22–23.
37 Chae Chan Ping v. United States, 606.
38 Four years later, in Fong Yue Ting v. United States, 149 U.S. 698 (1893), the Supreme Court affirmed the federal power to exclude and remove noncitizens as well; although the Constitution provides no explicit deportation power, the Supreme Court upheld the government's power to remove and expel noncitizens, again arguing that such a power was inherent to sovereignty.
39 See also The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), which soon followed on the heels of Chae Chan Ping v. United States and included similar questions about territoriality, sovereignty, and the power of the U.S. federal government over Utah territory and Mormon affairs.
40 United States v. Kagama, 118 U.S. 375 (1886), 384–85 (emphasis added). The case involved a constitutional challenge to the 1885 Major Crimes Act, a federal law that extended U.S. criminal jurisdiction to certain major crimes committed between Native Americans.
41 See Parker, Kunal M., Making Foreigners: Immigration and Citizenship Law in America, 1600–2000 (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar; Kanstroom, Daniel, Deportation Nation: Outsiders in American History (Cambridge, MA: Harvard University Press, 2007), 64–74Google Scholar.
42 In a recent issue of the new journal Modern American History, Margaret Jacobs even pointed out that “[t]he curious case of the federal government's ‘plenary power’ over both indigenous peoples and immigrants points to a productive area of inquiry,” but this important observation is buried in a footnote. Jacobs, Margaret D., “Seeing Like a Settler Colonial State,” Modern American History 1 (July 2018), 260n13CrossRefGoogle Scholar. In-depth connections between the development of inherent plenary powers in the case of “Indians, aliens, and territories” has been made mostly by legal scholars, but their analytical connections have remained largely at the doctrinal or theoretical level. See Saito, Natsu Taylor, “The Plenary Power Doctrine: Subverting Human Rights in the Name of Sovereignty,” Catholic University Law Review 51, no. 4 (2002), 1,115Google Scholar; Cleveland, Sarah H., “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs,” Texas Law Review 81 (Nov. 2002), 3Google Scholar. Rather than treating the cases as a chronological coincidence—in other words, as matters of legal and political development that converged around the same time—I am currently working on a book that points to a spatial connection. Taking a more granular look at the West (especially California and then the U.S.-Mexico border region) I am examining how the Indian Wars in the West transformed into battles against Chinese immigration along the U.S.-Mexico border.
43 This does not mean, of course, that the United States is any less imperial today, either abroad or in the domestic context. Rather, the outlines of its imperial ambitions and projects have changed form and have become less visible as a result. See for example the critiques offered by Schrader, Stuart, Badges without Borders: How Global Counterinsurgency Transformed American Policing (Oakland: University of California Press, 2019)Google Scholar; Singh, Nikhil Pal, Race and America's Long War (Oakland: University of California Press, 2017)Google Scholar; Miller, Todd, Empire of Borders: The Expansion of the U.S. Border around the World (London: Verso, 2019)Google Scholar.
44 Dave Graham, “Mexico Says It Has Deployed 15,000 Forces in the North to Halt U.S.-Bound Migration,” Reuters, June 24, 2019.
45 Legomsky, Stephen H., “Immigration Law and the Principle of Plenary Congressional Power,” Supreme Court Review 1984 (1984), 255–307CrossRefGoogle Scholar; Motomura, Hiroshi, “Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation,” Yale Law Journal 100 (Dec. 1990), 545–613CrossRefGoogle Scholar.
46 Salyer, Laws Harsh as Tigers, 23.
47 Legomsky, “Immigration Law and the Principle of Plenary Congressional Power,” 255.
48 United States ex. rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), 544; Reno v. Flores, 507 U.S. 292 (1993), 305.
49 Garrett Epps, “The Ghost of Chae Chan Ping,” The Atlantic, Jan. 20, 2018.
50 Trump v. Hawaii, no. 17-965 (June 26, 2018), 30.
51 Schuck, “The Transformation of Immigration Law,” 18, quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), 635–36.
52 Hiroshi Motomura, “Immigration Law After a Century of Plenary Power,” 547.
53 Chin, Gabriel J., “Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration,” UCLA Law Review 46, no. 1 (1998), 3, 10Google Scholar. See also Epps, “The Ghost of Chae Chan Ping”; Leah Litman, “Unchecked Power is Still Dangerous No Matter What the Court Says,” New York Times, June 26, 2018.
54 “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration,” Office of Public Affairs, Department of Justice, May 7, 2018; Alex Ward, “Read Trump's Speech to the UN General Assembly,” Vox, Sept. 25, 2018; Nishimura Ekiu v. United States, 142 U.S. 651 (1892), 659.
55 Paul A. Kramer, “Trump's Anti-Immigrant Racism Represents an American Tradition,” New York Times, Jan. 22, 2018.
56 Miriam Jordan, “Trump Administration Ends Protected Status for Thousands of Hondurans,” New York Times, May 4, 2018; Simon Denyer, “Thousands of Vietnamese, Including Offspring of U.S. Troops, Could Be Deported under Tough Trump Policy,” Washington Post, Aug. 31, 2018; Dara Lind, “Trump Is Proposing a Regulation that Could Change the Face of Legal Immigration—by Restricting Low-Income Immigrants,” Vox, Sept. 24, 2018; Tung Nguyen and Sherry Hirota, “Trump's Next Target: Legal Immigrants,” New York Times, Sept. 25, 2018.
57 “Defendant's Notice of Compliance,” Flores v. Sessions (C.D.CA, filed June 29, 2018), 1, https://www.justice.gov/opa/case-document/file/1077076/download?utm_medium=email&utm_source=govdelivery (accessed Jan. 2, 2020).
58 Dara Lind, “It's Official: The Trump Administration Has Replaced Family Separation with Indefinite Family Detention,” Vox, June 30, 2018.
59 Jolie McCullough and Chris Essig, “The Trump Administration Is Making Plans to Detain More Immigrants in Texas,” Texas Tribune, Aug. 2, 2018.
60 Michelle Chen, “Wall Street's Ties to the Private Immigrant-Detention Network,” The Nation, July 24, 2018.
61 Zusha Elinson, “Trump's Immigrant-Detention Plans Benefit Private Prison Operators,” Wall Street Journal, July 2, 2018.
62 Livia Luan, “Profiting from Enforcement: The Role of Private Prisons in U.S. Immigration Detention,” Migration Policy Institute, May 2, 2018, www.migrationpolicy.org/article/profiting-enforcement-role-private-prisons-us-immigration-detention (accessed Jan. 2, 2020). Between 2007 and 2014, CoreCivic's overall annual profits from immigration detention grew from about $133 million to $195 million, while GEO Group's annual profits increased from $42 million to $144 million.