Immigration Article: Immigration Law And Policy In Our Multiracial Democracy by Gabriel "Jack" Chin & Kevin R. Johnson
Immigration Law And Policy In Our Multiracial Democracy by Gabriel Jack Chin & Kevin R. Johnson, forthcoming, University of Pennsylvania Law Review, Vol. 174
Abstract
Immigration law fits uncomfortably in lawmaking in classic democratic theory. Unlike in other areas of law, the people most directly affected have no say in the immigration laws that govern them. Barred from the ballot box, immigrants often suffer the wrath of a political process that generates laws and policies that unfavorably treat them. Moreover, the immigration laws directly affect people of color from the developing world, which has the highest demand for migration to the United States. Racial differences and foreigner status make these immigrants unpopular with the general public and vulnerable in the political process.
Offering a case study of how the democratic process can discriminate against noncitizens, Part I of this Article explores the successful anti-immigrant advocacy of the Ku Klux Klan in the 1920s. Infamous for violence directed at African Americans, the Klan also was fervently anti-Catholic, anti-Semitic, and anti-immigrant. Patriotism and white supremacy proved to be the ticket. These views served as centerpieces of its resurgence and made the KKK a potent political force with a national membership in the millions in the 1920s. The Klan’s restrictive immigration approach is the foundation for two landmark pieces of legislation: (1) the Immigration Act of 1924, which created the national origins quotas system that excluded Catholic and Jewish people from U.S. shores; and (2) the Undesirable Aliens Act of 1929, which punished Mexican migrants who unlawfully entered the United States. Deeply influencing U.S. immigration law and policy for generations, these two laws find modern voice in President Donald J. Trump’s immigration words and deeds.
Part II of the Article analyzes how the discriminatory impulse reflected in the 1920s immigration laws has recurred throughout U.S. history and continues to influence modern immigration law and policy. Notwithstanding changing civil rights sensibilities after World War II, Congress in 1952 overrode President Harry Truman’s veto of the Immigration and Nationality Act and maintained the 1924 Act’s discriminatory quotas system. Not until 1965 did Congress dismantle the system and somewhat open the door to immigration. Despite claims that it was a civil rights triumph, the Immigration Act of 1965 responded to U.S. foreign policy imperatives, not popular demand for racial equality for immigrants. Moreover, anti-Latina/o sentiment led Congress to restrict Latina/o immigration in the Act and subsequent legislation. Today, conservative politicians complain that immigrants are flooding the nation and are no longer predominantly white. They resist immigration from Latin America, Asia, and Africa, as well as from countries with predominantly Muslim populations, despite contending that the Constitution must be color-blind in such matters as university admissions. President Trump has pursued immigration policies replete with racial restrictions and impacts.
Given the political disadvantages facing noncitizens combined with the lack of meaningful judicial review of the constitutionality of the immigration laws and policies by the Supreme Court, law and policy historically have treated immigrants in ways that U.S. citizens could never be treated. Absent major changes to the law beyond the scope of this Article, politics in our multiracial democracy can be expected to repeat past episodes of discrimination against immigrants. As the nation experiences another anti-immigrant moment, the time is right for the consideration of reforms that might moderate anti-immigrant political passions against poisoning immigration law and policy.
