Apart from the regulated importation of African slaves that predated the founding, formal restrictions on the immigration of racial minorities in American law began with the Immigration Act of 1875. Since then, race has figured prominently in determining which noncitizens may enter and must exit the country based on the law’s perception of a racial group’s assimilability into the predominantly white European culture of the United States. Economic downturns also precipitated the strongest backlash against immigration, much of it racial.
The earliest targets of racially restrictive immigration law were the Chinese, whose important work on the railroads and in the laundries of the West were blamed as a significant cause for the country’s economic woes during the late 1800s. This economic scapegoating, coupled with the perception that the Chinese were clannish, inscrutable beings who would not and could not assimilate, prompted Congress in the 1875 Act to make contracting to supply Chinese laborers a felony. This criminal provision was followed by the Chinese Exclusion Act of 1882, which banned the importation of Chinese laborers for ten years, provided for the deportation of Chinese who did not possess proper immigration documents, and prohibited Chinese nationals from becoming naturalized U.S. citizens. The Supreme Court upheld these laws in Chae Chan Ping v. United States (1889) and Fong Yue Ting v. United States (1893), ruling that Congress had plenary power over immigration law as an incident of federal sovereignty, thereby allowing the legislature to pass laws restricting the admission, and requiring the deportation, of individuals based on their racial ancestry. The Court has never repudiated the plenary power doctrine, and hence has never struck a federal immigration law for exceeding Congress’s mandate.
Supported by the Court, Congress expanded existing law in 1917 to create an ‘‘Asiatic barred zone,’’ thereby excluding all Asians from immigrating to the United States. While a similar bill to ban ‘‘all members of the African or black race’’ passed the Senate, extensive lobbying by the NAACP halted progress of the bill. Instead, Southern and Eastern Europeans were effectively excluded by a 1921 law temporarily confining immigration to Northern and Western Europeans, which was later promulgated permanently in the National Origin Act of 1924. Establishing the ‘‘national origins quota system,’’ the 1924 Act fixed a nation’s immigration quota as a percentage of its population already within the United States; it also allowed for the exclusion of all those not eligible for naturalization, which effectively halted Asian immigration. On the deportation side, lawful Mexican immigrants and U.S. citizens of Mexican descent became a target group during the Depression and then again during the 1950s pursuant to ‘‘Operation Wetback.’’ Although no law forbade Mexican immigration, federal officials enacted programs of ostensible ‘‘repatriation’’ of Mexicans and Mexican Americans, leading to the deportation of millions.
Formal racial restrictions on immigration law were lifted in 1965 when Congress repealed the national origins quota system, leading to the modern boom in Asian and Latin American immigration to the United States that continues to the present day. Still, purposeful discrimination based on race is constitutionally permissible because the plenary power doctrine created by the anti-Chinese cases Chae Chan Ping and Fong Yue Ting has never been repudiated. Although post-1965 immigration from Asia and Latin America has substantially changed the complexion of contemporary American society, and while the overt vestiges of racial discrimination have been excised from immigration and nationality law, national origin distinctions still serve to privilege some groups over others, mirroring the traditional racial divide. For example, under the Visa Waiver Program, individuals from several Western European nations are allowed to visit the United States for an extended time without a tourist visa, while most Asian and Latin American nationals are not. Additionally, the Diversity Visa lottery, which purports to diversify the immigrant stream, disproportionately benefits Europeans and Africans.
During the period immediately following the September 11, 2001 terrorist attacks, race appeared to be a strong proxy for disloyalty and terrorism in the government’s deployment of its immigration power. Many Arab and Muslim noncitizens were detained and questioned in connection with the attack, a majority of whom have since been deported for technical immigration violations. With the reassignment of both the service and enforcement functions of the federal government’s immigration wing to the Department of Homeland Security, the question will be whether, over time, the government is able to find a comfortable balance between using its immigration power to help secure the nation’s borders and ridding itself of American immigration law’s racist legacy.
VICTOR C. ROMERO
References and Further Reading
Cases and Statutes Cited
See also Equal Protection of Law (XIV)