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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians
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Friday, November 12, 2021
The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Maureen A. Sweeney As the director of a law school immigration clinic, I came
to Carol Nackenoff and Julie Novkov’s American by Birth: Wong Kim Ark and
the Battle for Citizenship as both an immigration practitioner and a
scholar. And under both these hats, I found it helpful and interesting. The
book is a supremely readable account of the context, including the individual
and communal lives, behind the legal decision that established the strong
principle of jus solis in U.S. law, “even” for the children of Chinese
immigrants. More than the story of one
Supreme Court case, though, I found it an illuminating example of what is an
all-too-familiar collision in the immigration sphere between the egalitarian
ideals of the American constitutional experiment and the realities of race-based
power politics. Indeed, the tug of war
between universalist democratic ideals and efforts to use immigration law to
preserve the supremacy of Americans of European heritage is the history
of our immigration. The Wong Kim Ark tale
is a positive one – and important, as birthright citizenship has indeed proved foundational
to the empowerment of successive immigrant groups in the U.S. – but the authors
do not shy away from conveying the unabashedly race-based assumptions and
justifications given for legislation and court rulings that contributed to that
decision and to more recent discussions of birthright citizenship. Nackenoff and Novkov engage in a project of historical
reckoning and reclamation that is precisely what our immigration and nationality
law requires at this moment in time. As
a nation, we need to acknowledge that the legal house we live in was constructed
of building blocks that were designed and intended to advantage and
promote northern Europeans and their descendants, those Justice Field
referred to repeatedly as “our people” in the Chinese Exclusion Case. The structure
of the house, in other words, was designed to support white
nationalism. Learning our history is the first step in the process of
understanding the substance of our law, of peeling away the layers of paint and
wallpaper that now cover those building blocks with a veneer of race
neutrality. Educated with our history, we can learn to look beyond
now-facially-neutral laws and confront the ongoing legacy of racism in our
immigration legal system. And answer the question: Can we be true to our democratic ideals by
remodeling the current legal system or do we need to tear down and rebuild the
whole house? Principles of birthright citizenship came to the American
colonies with the British but, as Nackenoff and Novkov so understatedly put it,
“race complicated the questions” right from the beginning. They continue to do so. Immigration lawyers today observe the
punitive weight of our dysfunctional immigration system falling
disproportionately on non-white people. We
sit with Black and brown and Asian people in literal waiting rooms and in long
backlogs at USCIS (which adjudicates affirmative immigration applications), in
the immigration courts (which hear removal cases), and especially in ICE and
border patrol detention facilities (where men, women and children of color are disproportionately
locked up). We watch as clients picked
up in traffic and criminal enforcement in over-policed and over-prosecuted
communities of color are fed from there into immigration enforcement – and denied
bail or relief from deportation because of the simple fact of an arrest, even
when it does not result in conviction. We see the way legal interpretations
fail to account for the experiences of our clients of color, dismissing complex
dynamics behind their migration with the easy assumption that they are simply and
undeservedly trying to grab a part of the American dream that doesn’t belong to
them. We see Haitians
and Cameroonians
and other Black applicants and asylum seekers being treated with excessive
harshness and suspicion and force. We note
how discretionary decisions about whether our clients are “credible” or whether
their testimony is “plausible” or whether they represent a “danger” to the
community fall notably more often in favor of white clients than those who are
Black or brown. In short, as lawyers working in the system, we see that race
continues to play a strong role in immigration in America. What are sometimes
more difficult to pinpoint are the legal mechanisms by which race continues to
play such a role, in an era when immigration statutes and policies have become race-neutral
on their face. We are a long way, on
paper at least, from the 1790 act in which Congress authorized naturalization eligibility
for “any alien” and then felt free to clarify that this meant anyone who was a
“free white person.” History, the kind of detailed, context-rich history in American
by Birth, is undoubtedly one of the keys to identifying and understanding
the ongoing shape that historical building blocks give to our current
immigration system and the debates around it.
This history can help us identify the pernicious cycle by which heated –
and explicit – racist assumptions and rhetoric are invoked to justify legal restrictions
on a certain group, after which the restrictions shape the behavior of the
regulated group, after which either the resulting behavior or the original restrictions
(with no mention of race) are used to justify further restrictions. At the end of this cycle, we are left with race-neutral
legal provisions that obscure the original racial intent as much as the ongoing
racially disparate exclusions. Nackenoff and Novkov give a great example of this dynamic in
their description of one interplay between U.S. legal developments and the transnational
lives of many Chinese men who lived and worked in the U.S. in the late
nineteenth century. In 1875, Congress
passed its first legislation designed to restrict Chinese immigration, which,
among other things, barred entry to “coolie” laborers and anyone suspected of
being a prostitute. As inspectors subsequently assumed with little evidence that
most Chinese women who attempted entry were either prostitutes or polygamous
wives, the 1875 Act severely curtailed the number of Chinese women who were
able to immigrate to the U.S., reducing the numbers from thousands annually to
a handful. The lack of women, in turn,
made it harder for Chinese men to establish families in the U.S., so many
resorted to transnational lives, traveling back and forth between their jobs in
the U.S. and families that they established in China. The fact that these men established their
families abroad and immigrated without them contributed in the U.S. to the
characterization of Chinese men as a “labor invasion” and “unassimilable,”
which in its turn was used to justify the escalating measures of excluding and
deporting long-time U.S. residents and explicitly disqualifying the Chinese from
naturalization. And in a final twist, the
Johnson-Reed Act of 1924 translated this ineligibility for naturalization into a
facially neutral ban on issuing visas to anyone “ineligible to citizenship” –
in other words, to all Chinese and other Asian applicants. The visa ban was race-neutral on its face and
might have had a certain logic when considered out of context (unsuitability
for naturalization might call into question suitability for admission), but the
history exposes its roots, purpose and effect in the race-based exclusion of
Asian persons. U.S. immigration history is replete with examples of race-neutral
language that masks policy passed with racial intent. The authors mention the 1924 Act’s neutral-sounding
reference to earlier census data to establish national quotas (for non-Asians),
which were purposefully designed to cut off large scale recent immigration from
southern and eastern Europe. They
likewise highlight the shift in the political rhetoric around family-based
immigration (from “family reunification” to “chain migration” rooted by “anchor
babies”) following the demographic shifts that resulted in these provisions’
failing to preserve the 1924 Act’s biases in favor of white Europeans. Nackenoff and Novkov’s treatment of birthright citizenship demonstrates
the power of placing contemporary policy discussions in the light of unblinking
historical scrutiny. Arguments about the
need for mutual and objective “social contracts” between the body politic and
newcomers ring distinctly more hollow when it is clear that the system was rigged
from the beginning in favor of “white persons” at the expense of persons of
African, Native American, Mexican, and other nonwhite descent. Indeed, my one complaint about the book’s
presentation of arguments is that is does not give more prominence to what I
find the most compelling argument for birthright citizenship in the U.S.
context – that any claims to political belonging in the U.S. through
citizenship must be filtered through a reckoning with our body politic as a
post-settler nation that was, from its foundation, compromised in its dealings
with race. Once we acknowledge that our
national territory was acquired by violently dispossessing its native peoples
physically and politically, and that our foundational social contracts and
legal frameworks were explicitly designed and intended to favor people considered
to be “white,” we must proceed with extreme caution when we seek to define
“our” people. We should stand in the face of our national history with a
humility that acknowledges that, other than Native Americans, none of us
“deserves” or is more “worthy” of birthright citizenship than anyone else. We
are all settlers in a country that was never ours by divine right and that was
built from the beginning to favor one racial group over others. While a strong
policy of jus solis does not erase that history, it does provide a
strong equalizing force moving forward. Litigators have begun to use historical scholarship like
Nackenoff and Novkov’s as a way of unmasking and challenging the racial
structures and dog-whistles in immigration law and policy. A federal
judge in Nevada recently held that the immigration provision that
criminalizes illegal reentry (8 U.S.C. §1326) violates the equal protection
guarantee, relying on expert testimony from scholars Kelly Lytle
Hernández and Benjamin
Gonzalez-O’Brien about the historical context of the provision’s enactment
and its ongoing racially disparate impacts.
In a similar way, but grounding its race-based
equal protection claims in contemporary statements and justifications given by
the Trump administration, the NAACP Legal Defense Fund brought a lawsuit in 2018 seeking
to enjoin the administration’s attempt to revoke protections for Haitian
nationals under Temporary Protected Status.
I, for one, am very excited about this complementary marriage of
historical scholarship and litigation.
One fruitful area of exploration going forward will be around
immigration provisions that rely on criminal arrest or prosecution to trigger
immigration consequences and enforcement.
Given the vigorous work currently exposing racial inequities in the
criminal legal system, I look forward to seeing further challenges to the ways
those inequities are magnified in the immigration system. Understanding the history and the structure of the legal
house we live in is important for reasons that go well beyond litigation
strategy (especially as courts may become less likely to rule in favor of
race-based equal protection claims). It
is crucial for our broader understanding as a culture – and for organizers and
advocates who seek to change law and society by political and social means. Arguments
based in equality may ultimately gain more traction in such non-litigation arenas,
where the technical perils of equal protection jurisprudence and the plenary
power doctrine hold less sway. As scholars, as litigators, as a society, we better understand
our immigration law when we know its history, including – perhaps especially – the
unsavory parts. As citizens, we are
better off for the history we learn from such work as American by Birth,
and we are better equipped to build for a future rooted less in a project of
white nationalism and more in our national ideals of equality. Maureen A. Sweeney is Law School Professor and Faculty Director, Chacón Center for Immigrant Justice at Maryland Carey School of Law. You can reach her by e-mail at msweeney@law.umaryland.edu.
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