Read the first two installments of this series here and here.
Should constitutional rights apply to citizens only, or to all persons present in the United States? Do immigrants have the right to public services, including education, or are such rights limited to citizens? Is the power of the federal government unchecked when it comes to the interpretation and administration of immigration laws? If yes, then why does the same calculus not apply to the states?
The 13th, 14th, and 15th Amendments were designed to limit the power of the states over non-citizens, and guarantee rights to all “persons.” The 14th Amendment says that “no State … shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This prohibits incarceration without trial, as due process and equal protection of the law apply to all persons.
There is no doubt that the U.S. Constitution is written with “persons” in mind, there is no assertion that someone has to be a citizen in order to possess rights. In liberal eras, the courts have upheld this position, whereas in more restrictionist political environments there has been difficulty holding on to the notion of personhood.
In Matthews v. Diaz (1976), the Supreme Court approved limits on the availability of federal medical insurance to lawful permanent residents, arguing that “the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens.” But this was a federal issue, whereas the court felt differently in the landmark Plyler case shortly thereafter, concerning a Texas law barring education.
The issue of access to education illustrates the see-saw well. In the historic Plyler decision of 1982, the Supreme Court held that nonimmigrant students, regardless of status, have a right to K-12 schooling as long as others are being offered the same right. If higher education is as essential to a person’s success in the United States as education up to high school, then why should higher education not fall under the same logic as Plyler? There is no logically consistent answer to this.
During the 1990s and 2000s, some states offered in-state tuition to undocumented students, while other more restrictionist states (such as Arizona, Georgia and Indiana), not only didn’t offer in-state tuition but prohibited the enrollment of undocumented students in institutions of higher learning. From the point of view of the public good, to allow students to continue up to high school but then foreclose possibilities of equal access to education does not make sense.
As early as the 1880s, the courts held that individual states could not discriminate against immigrants on the matter of equal access to opportunities. It’s unfortunate that in the increasing climate of xenophobia, until immigration was at last stalled in the 1920s, this doctrine did not get more of a chance to flourish. In Truaux v. Raich, the Supreme Court held in 1915 that Arizona could not restrict the employment of aliens. Leading up to Plyler, in the post-civil rights euphoric mood of the early 1970s, the Supreme Court struck down Arizona and Pennsylvania statutes that discriminated against non-citizens for the grant of welfare benefits. And in Graham v. Richardson in 1971, the Court held that a state could have “no special interest” in limiting to citizens the expenditure of tax revenues to which aliens had contributed.
Another consistent contradiction in immigration law is the issue of retroactivity, i.e., the punishment of crimes that were not upon commission held to be deportable. This could include participation in political organizations such as the Communist Party, which became a deportable crime in the 1950s, with the passage of the Internal Security Act of 1950, or deportation on the basis of contribution to charities that were looked upon with favor in the 1990s but after 9/11 came under the broad umbrella of terrorism.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as previously noted, is the most egregious offender in this regard, as it reclassifies numerous petty transgressions -- everything from shoplifting to passing a bad check -- as “aggravated felonies” worthy of deportation, regardless of the length of stay and the family and community ties of the immigrant.
The court has never satisfactorily resolved whether immigrants are "persons," which makes all the difference in the world because the Constitution clearly applies to persons, not citizens only.
If this reminds us of the way African-Americans at one time were not fully considered persons, it should; the present impasse, which has really been going on since the 1880s, is one of the last remaining major hurdles in the realization of the U.S. Constitution. Because of this indecision, the courts have had a mixed history on the question membership versus exclusion, often arriving at entirely inconsistent decisions. There are plenty of good and bad precedents for legal doctrine to draw on in the future.
For example, Gonzales v. City of Peoria (1983) curtailed the powers of local police to enforce immigration laws unless there was already a federally authorized criminal investigation in progress. But during the 1990s and 2000s, in such decisions as U.S. v. Vasquez Alvarez (1999) and U.S. v. Santana-Garcia (2001), the effect of the Gonzales precedent was weakened as local police were given broad discretionary powers.
The problem with the plenary power doctrine
To the extent that the Trump administration is likely to get away with mass deportation, it is the plenary power doctrine, i.e., the presumption of unlimited executive authority on matters of immigration, that will lend such a policy doctrinal support. But here too the picture is not one-sided or consistent: There have been decisions both supportive and skeptical of the plenary power doctrine, depending on the political climate of the moment. The courts have a mixed history on this.
As mentioned earlier, the plenary power doctrine originates in the Supreme Court’s 1889 decision in Chae Chin Ping v. United States, where Chae was a U.S. resident who went to China for a family visit and was then denied re-entry because the Chinese Exclusion Act had been passed in the meantime.
The Chae ruling was extended in Fong Yue Ting v. United States shortly thereafter (1893), where the court upheld the deportation of Fong because he could not, according to the government, produce a “credible white witness” to support his claim of residency. In Fong, the court held that “the right to exclude or to expel all aliens, or any class of aliens … [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare ... [and is] absolute and unqualified.”
Around the same time, however, another important decision, Yick Wo v. Hopkins, struck down a San Francisco ordinance that discriminated against the Chinese in their operation of laundries; when it came to local enforcement, the court felt that the 14th Amendment’s equal protection clause applied.
In Harisiades v. Shaughnessy (1952), which allowed the deportation of three immigrants -- former Communist Party members -- Justice Felix Frankfurter held that the "conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classifications, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.” This repugnant doctrine has been extended over the last 70 years to permanent residents.
Two other notorious cases supporting ideological exclusion give Trump everything he needs to enforce a wider Muslim ban, including against the resident population.
In Knauff v. Shaughnessy (1950), the Supreme Court permitted the exclusion of Ellen Knauff, the non-citizen wife of a U.S. citizen, without a hearing, based entirely on confidential information. The court held that the "exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not from legislative power alone but is inherent in the executive power to control the foreign affairs of the nation.”
As for Shaughnessy v. Mezei (1953), Ignatz Mezei had lived in this country from 1923 to 1948, but was prevented re-entry from Romania and detained at Ellis Island. The Supreme Court upheld his detention even though no country was willing to take him, leading to the possibility of indefinite detention.
On the other hand, going as far back as Secretary of State Elihu Root’s 1910 opinion that there should be an “international minimum standard” for the legal treatment of aliens, the court has also gone in the other direction.
In Whitfield v. Hanges, the Supreme Court held in 1915 that “an alien, as well as a citizen, is protected by the prohibition of deprivation of life, liberty, or property without due process and the equal protection of its laws. This principle is universal. It applies to all persons within the territorial jurisdiction of the United States without regard to any differences of race, or color or of nationality.”
Likewise, in Colyer v. Skeffington, a federal court held in 1920 that “aliens have constitutional rights. The Fourth, Fifth, Sixth, and Fourteenth Amendments are not limited in their application to citizens. They apply generally to all persons, within the jurisdiction of the United States.”
So the plenary power doctrine has never been absolute; it comes into play at restrictionist moments, and is then presented as singularly relevant. But such is not the case. If we are to resolve the immigration dilemma, the legislature has to take the initiative by passing laws enshrining human rights for all immigrants, regardless of status or length of stay, laws that would be as momentous as the Civil Rights or Voting Rights acts of the 1960s.
The focus, for activists and thinkers, should shift from legalizing only some of the people, provided stringent neoliberal conditions of personal responsibility are met — I refer, of course, to a subset of younger undocumented immigrants known as the Dreamers — to demanding full human rights, and an end to detention following the withholding of human rights, for all persons in the United States, Legalization per se should not be the focus, but rather the extension of human rights to all.
The recent scare, in leaked Homeland Security memos, about the possibility that the National Guard would be at the service of states enforcing mass deportation, is beside the point. The Guard may or may not be used; we are past that concern. Even without the use of the military, which was the case during the climax of Operation Wetback, far greater numbers of immigrants are being administratively removed each year. Such a vast machinery for the removal of hundreds of thousands of persons each year with ties to the community bears comparison with the removal of Native Americans and with the forced displacement of West Africans as slaves.
Immigrants should have the same legal rights as everyone else
All the categories deployed today in immigration discourse — refugee, immigrant and non-immigrant — are mythical, and their continued usage does not serve the cause of human rights.
With the widespread prevalence of mixed-status families, the legal vs. illegal definition becomes ridiculous. A parent may have arrived illegally or lost status 20 or 30 years ago, but may have children who were born here and are by definition U.S. citizens; at some point, should the children be able to sponsor the parent? If that possibility is open, then is the parent immigrant an “illegal” person?
As noted already, most who become legal in the United States these days arrive with non-immigrant visas that already put them on the path to citizenship, whereas the same path is not open to others. In this context, “entering without inspection,” an established category in immigration, makes as little sense as the existing preferences in the legal immigration system, which give priority to immigrants who may have had nothing to do with the United States, compared to those who may already have spent most of their lives here.
A Canadian-style merit-based points system (mentioned by Trump in his first speech to Congress), if deployed in the United States, is likely to become a pure neoliberal instrumentality, merely extending the already existing biases inherent in the H-1B system toward high-skilled professionals to the entire immigrant population. The goal, for a human rights immigration regime, should be get away from preferences of any sort.
Much of the “illegality” stems from the unreasonable years-long backlog for those who are “in line” — up to 20 years for certain immigrant family members. Will people wait out the bulk of their productive lives before joining family members in the United States? If there were zero backlog, and the immigration system were largely managed by way self-entry and self-exit, then by definition the problem of illegality would cease to exist. If we couldn’t file our tax returns for 20 years, our earnings in the meantime would become “illegal” and subject to seizure. Would that be a fair system?
On the other end of the spectrum from high-skilled immigrants, what do we mean by a "refugee"? When do we explicitly create refugees, and when do we decide we bear them special responsibility?
Immigration law since the end of World War II, once the tragic mistake of not admitting Jews fleeing the Holocaust was realized, has been littered with one inconsistent exception after another when it comes to refugees. Cubans have always received preferential treatment, while Haitians get the exact opposite treatment. If a Cuban arrived on U.S. shores (at least until the 1980 Mariel boatlift, when Fidel Castro released many Cuban prisoners, causing great consternation) he or she was automatically on the path to legality. Haitians fleeing political turmoil, often worsened by American intervention, have at times been forcefully turned away.
In many parts of the world the existence of refugees has been, for 70-plus years, the direct consequence of our interventions: Vietnam, Cambodia, Afghanistan, Iran, El Salvador, Guatemala and Honduras are a few examples, and most recently the refugees caused by our intervention in Syria. Sometimes we have taken special responsibility toward refugees created by our actions, while at other times we have outright refused them acceptance, as in the case of Iran and now increasingly in the case of Syria. We took in refugees from Central America during the 1980s and 1990s, granting them temporary status -- and then threatened to withdraw such status, depending on the shifting political winds.
Ultimately, the concept has become fatally compromised, and serves at this point only to drive a wedge between refugees and other immigrants, as though there were a line that could be drawn between economic and political motivations for immigration. Are political refugees not economic migrants? Are economic migrants not political refugees?
What is the border? Do we really need one?
The border is the reified concept that has most gotten out of control because of the political meanings invested in it. There can be no rational solution for immigration until we do away with the concept of the border.
Whereas Trump wants to erect a "big, beautiful wall" — this too has been a constant in American political mythology, going back 100 years, and manifesting either as a fence or a wall, depending on the degree of restrictionism — along the Mexican border, most nonimmigrants fly into the country and are either on a path to citizenship or not; increasingly, the flight into the country is a binary situation, as one's available options to adjust immigration status have been reduced.
The border extends internally and infinitely, policing employers, schools, hospitals, welfare centers, day labor sites, motor vehicle offices, social security offices and roads and highways: The only solution, to end the relentlessly growing idea of the border, is to end sanctions on employers and return instead to human rights for all workers. In fact, the restriction of workers’ rights and the restriction of immigrants' rights have gone hand in hand and are interdependent, as labor unions have finally started to recognize over the last 30 years.
Any guest worker program trades on the aberrations of the “border,” and replicates new systems of policing and repression, and should be no part of a humanistic immigration initiative. It further consolidates the existing class biases in the immigration system. A “guest worker” is supposed to be one who works in agriculture or manual occupations, but a professional H1-B engineer is not a “guest worker,” though he or she also arrives with temporary status. We need not harden such inconsistencies by giving any credibility to guest worker programs. Germany faced a crisis in the 1980s with many Turkish workers who had been imported as guest workers, even though German laws didn’t allow them access to citizenship. That situation has since been corrected, but it should never be one that is chosen deliberately.
If we were serious about ending the repressive effects of the border, then we would reconsider "free trade” agreements, which are really nothing but formalized concessions to various corporate monopolies, and are the direct cause of massive displacement in Mexico and Central America.
We would end the dehumanizing practice of detention by shutting down all detention centers, ending all roadblocks, checkpoints and raids, and getting private business out of immigration enforcement -- not by way of making it a federal monopoly but by ending the concept altogether.
What, exactly, at this point is the border supposed to keep out?
Since the economic crisis of 2008 and our intensifying human rights violations, net immigration from Mexico has been negative. If circular flows were allowed as in the past, net immigration would no doubt have fallen dramatically into negative numbers as many immigrants would have returned home. If we want to decrease immigration -- if that is in fact the goal -- then we should abolish the border as a concept. Many will want to leave, as was true until the 1920s; many will return to their countries carrying the seeds of American ideals, in a healthy two-way exchange of migration.
In short, the myth of the Dreamer, the privileging of the length of stay and the social construction of the good versus the bad immigrant are all arbitrary designations that do not help a human rights discourse. It is neoliberal inhumanity to construct the myth of the young, physically vigorous, super-loyal, energetic and unresentful Dreamer, grateful and gracious to the core, while excluding from immigrant mythology the disabled, older people, learners and caregivers, artists and creative people, and those who cannot be employed in the professions and activities the neoliberal economy emphasizes.
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