Bans, Walls, Raids, Sanctuary

Understanding U.S. Immigration for the Twenty-First Century

A. Naomi Paik

• Publisher: University of California Press
• Year: 2020
• ISBN:
  9780520973268
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Emigración e inmigración

Days after taking the White House, Donald Trump signed three executive orders—these authorized the Muslim Ban, the border wall, and ICE raids. These orders would define his administration's approach toward noncitizens. An essential primer on how we got here, Bans, Walls, Raids, Sanctuary shows that such barriers to immigration are embedded in the very foundation of the United States. A. Naomi Paik reveals that the forty-fifth president's xenophobic, racist, ableist, patriarchal ascendancy is no aberration, but the consequence of two centuries of U.S. political, economic, and social culture. She deftly demonstrates that attacks against migrants are tightly bound to assaults against women, people of color, workers, ill and disabled people, and queer and gender nonconforming people. Against this history of barriers and assaults, Bans, Walls, Raids, Sanctuary mounts a rallying cry for a broad-based, abolitionist sanctuary movement for all.

ONE

Bans

The announcement of the Muslim Ban was the exclamation point on a long vitriolic sentence. For months Donald Trump had promised to enact a “total and complete shutdown of Muslims entering the United States.” He spewed a litany of statements equating Muslims with terrorists. He re-tweeted incendiary anti-Muslim videos produced by Britain First, a far-right organization. He referred to the Japanese American “internment” during World War II as a historical precedent for his anti-Muslim agenda, stating, “What I’m doing is no different than FDR.”¹ The executive order did not explicitly target Muslims for exclusion, instead using geography as a proxy for religion, but this catalogue of anti-Muslim hostility makes its motivation obvious.

Multiple lawsuits were brought, and a federal court in New York suspended the ban two days after Trump signed it. In response, the administration revised the ban twice, each time trying to circumvent judicial challenges by divorcing it from its anti-Muslim intent. In June 2018, the Supreme Court agreed with the administration, affirming the president’s “ample power” over immigration and the Muslim Ban’s compliance with the Constitution. With implications that will outlast the ban itself, the Supreme Court declared that a ban on a religious group aligns with the nation’s founding document.

This chapter investigates two threads of immigration history that converged in the Muslim Ban: efforts to exclude unwanted migrants and the myriad manifestations of anti-Muslim racism. The Supreme Court’s decision to affirm the ban was possible only because of a deep history of legislation, judicial precedents, and understandings of sovereignty that uphold the executive branch’s power to exclude whomever it determines harms national interests. Furthermore, Trump’s vitriol against Muslims merely foments an already deep well of antagonism. This particular racism is centuries old and has become increasingly acute in the era of neoliberalism, especially since the attacks of September 11, 2001. It ensnares Muslims of varying racial and ethnic backgrounds, as well as anyone perceived to be Muslim. The ensuing United States-led War on Terror has in turn exacerbated these antagonisms by helping to create the conditions that led to the Muslim Ban. Years of bombing and destruction in Afghanistan, Iraq, and elsewhere have destabilized entire regions, compelling many to migrate, thus generating some of the very “problems” the ban targets.

Our analysis of today’s immigration predicament begins with bans, because their history illustrates the centrality of racism and other forms of oppression in casting out those deemed undesirable. These bans have not functioned in the same way over time and against all groups subjected to them. The new methods of excluding Syrian refugees operate differently than those used against Latinx migrants in the past and present, for example. But to understand the ways the United States has managed immigration requires seeing the underlying logic of prohibiting the mere entry and presence of entire groups in the country, whether they enter via airports, oceans, or land borders. In mandating these exclusions, the United States produces intractable immigration problems it then tries to solve through more bans and regulations, which inevitably fail. U.S. laws excluding certain foreign-born people create the demonized class of “illegal aliens,” who are then subjected to state discipline. Put differently, it is the ban that in turn establishes the need for walls, raids, and other tools deployed against the banned.

THE EMERGENCE OF BANS

The United States has been, from its very origins, defined as much by whom it excludes as by whom it includes. The range of exclusions has changed over time, based on nearly every category of differentiation, from race to gender to wealth, from sexuality to health to ability. What determines the exclusion of the day is the United States’ shifting needs in domestic politics, labor demands, and international relations. These bans have defined the United States by defining who and what it is not.

For nearly its first hundred years, the U.S. federal government did not restrict immigration at all. From today’s perspective, this radical openness seems unfathomable. But during the colonial period and as a new nation, people were welcomed to the United States. Immigrants, especially from Europe, were needed to colonize this vast land. At the same time, the nation’s founding was defined not solely by this welcome to settlers, but also by expulsion, the casting out of others. Settler colonization required not only alienating Indigenous peoples from their land, but also exploiting the labor of enslaved Black people. Neither the original peoples already here, nor the enslaved people brought here by force, could be citizens of the nation. Only European settlers were identified as “belonging to the land, and the land belonging to him,” as Leti Volpp argues.² Soon after its founding, the United States consecrated this racially exclusive membership with the 1790 Naturalization Act, which reserved naturalized citizenship only for the “free white person.” Even American Indians born outside U.S. territory were banned from naturalizing. Every law that has expanded the terms of inclusion, like the Fourteenth Amendment that granted citizenship to emancipated Black people, has modified these fundamental exclusions.

The logic of barring certain groups from citizenship eventually expanded to immigration, prohibiting their mere entry into the territory. In the mid-nineteenth century, nativist movements on the West Coast rallied for a ban against Chinese migrants. Motivated by racism and later retroactively justified by the country’s first Great Depression in the 1870s, these nativists identified Chinese people as a noxious presence. While targeting them by race, the Chinese Exclusion Acts of the next decades were not strictly about race. The 1875 Page Act, the first federal law to restrict immigration, barred the entry of anyone accused of prostitution or “lewd and immoral behavior,” a decidedly ill-defined category. Immigration inspectors transformed this prohibition into a general ban on Chinese women by equating them with immoral sexual behavior and sex work, even as they allowed men to enter (their labor being needed in the U.S. West). This ban—racial and gendered—separated women and children from migrant men for decades. Seven years later, the 1882 Chinese Exclusion Act banned Chinese workers, their labor deemed degraded, close to slavery, and antithetical to the nation. But the act exempted well-resourced diplomats, students, and merchants who might foster inroads into the coveted Chinese market. As the Chinese Exclusion Acts demonstrate, immigration bans have long reflected the state’s wavering whims, sifting the undesirable from the desirable, rather than welcoming the people whose labor and social contributions have built the country, regardless of origin. The logic grounding contemporary immigration policies like NAFTA—promoting the free movement of goods and money but locking down human mobility—reaches to the origins of immigration bans.

As the first federal immigration restriction, Chinese exclusion generated the precursors to controls we now take for granted. Most important, in the banned Chinese migrant, the federal government created the original “illegal alien”—a noncitizen who is “unlawfully present” or “commits a deportable offense.”³ Previously, there was no concept of the “illegal alien,” because there were no laws that banned migrants, no mandated documents that proved legal presence, and thus no immigration inspectors. As historian Erika Lee notes, once the United States restricted Chinese migrants, it had to create mechanisms to enforce those restrictions.⁴ These innovations include the first use of migration documents like visas and passports; the first federal immigration inspectors, like border agents; and the first attempts to monitor the movements and financial relationships of migrants. “Immigration control was emerging as a key pillar securing settler dominance” and was soon used to craft “new methods of racial governance in the settler state,”⁵ Kelly Lytle Hernández argues.

Under exclusion, Chinese workers already in the United States had to carry a certificate of residence. If they wanted to leave the country and return (to visit family, for example), they had to obtain a certificate of reentry, though these certificates would, by 1888, be revoked. Chinese people attempting to enter the country had to pass inspection at Angel Island, an immigration station off the coast of San Francisco. They endured physical examinations, interrogations designed to confirm their identities, and detention without knowing whether or when they would be permitted into the United States.⁶

Chinese migrants resisted. The Chinese Six Companies, a coalition of mutual aid organizations, mobilized civil disobedience and legal challenges against exclusion. Encouraging Chinese people to “stand together” against “unjust law,” the Six Companies pledged legal support to those who refused to comply and demanded members donate to a legal defense fund.⁷ Thousands filed lawsuits against exclusion. However, the Supreme Court determined that the legislature and president had vast powers over immigration issues, setting precedents that endure today. Three key cases—Chae Chan Ping v. United States (1889), Fong Yue Ting v. United States (1893), and Wong Wing v. United States (1896)—respectively upheld the government’s authority to exclude, deport, and detain “any class of aliens” as an “inherent and inalienable right” of the state. The Constitution makes no mention of immigration control and thus does not give such sweeping powers over immigrants. In its interpretation, however, the Court decided that, for immigrants under exclusion or deportation orders, “The provisions of the Constitution . . . have no application.”⁸

The Court used national security to justify its decision. However, then as now, racism informed whom the government targeted as a security threat. In Chae Chan Ping, Justice Stephen Johnson Field stated on behalf of the Court: “If . . . the government considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed.”⁹ The Court pinned Chinese migrants’ lack of assimilation on their character alone. In fact, Chinese people were driven to live in isolation from dominant society by discriminatory and violent practices, including massacres and federal and state laws prohibiting them from naturalizing, owning property, or marrying white women.¹⁰ Though Field raised a menacing specter of “vast hordes” who “crowd in upon us,” Chinese people comprised less than 0.17 percent of the U.S. population in 1890.¹¹ As Lytle Hernández argues, Chinese exclusion was envisioned as a project designed to “make the Chinese race . . . extinct in this country.”¹²

In these rulings, the Court went so far to agree with Chinese exclusion that it limited its own authority, indeed, its very mandate: to check the powers of the legislative and executive branches. Legal scholars describe these vast powers over immigration, unconstrained by the courts and interpreted as essential to U.S. sovereignty—the state’s ability to exercise full authority over its territory and people—as “plenary power.” As we will see, this plenary power is central to the dangerous precedent set by the Supreme Court’s decision on the Muslim Ban.

Once the federal government established such vast authority to regulate immigration, those powers have continually expanded, just as the groups deemed undesirable have expanded and changed. The 1882 Immigration Act, passed two months after the Chinese Exclusion Act, banned “any convict, lunatic, idiot, or any person [likely to become] a public charge.”¹³ The 1891 Immigration Act included paupers, “persons suffering from a loathsome or dangerous contagious disease,” and persons convicted of a felony, misdemeanor, or crime “involving moral turpitude.”¹⁴ These laws thus targeted people with intellectual and physical disabilities, mental illnesses, or other conditions, like poverty, that might lead to using state assistance. Excluding “convicts” also linked immigration restriction to crime, subsequently an ever-tightening bond. Meanwhile, exclusion broadened to target other Asians, culminating in the 1917 Immigration Act, which created the “Asiatic Barred Zone.”¹⁵ What began as a ten-year ban against Chinese women and laborers turned into a generalized ban against virtually all Asian migrants with no end date. The United States ended Chinese exclusion only in 1943, as a foreign policy decision, since China fought alongside the Allies in World War II.

In 1924, President Calvin Coolidge signed the Johnson-Reed Act, which established the harshest immigration restrictions in U.S. history. As the “greatest triumph of the eugenics movement,”¹⁶ the law not only banned Asians from naturalization entirely, but it also established immigration quotas in ways that radically reduced the numbers of permitted Southern and Eastern European migrants, who were deemed less “white” than other Europeans. Its restrictions on European migrants functioned differently than the exclusion of Asians. The law set national origin quotas at 2 percent of the number of immigrants of that group in the United States according to the 1890 census. While appearing unbiased, these quotas in fact targeted undesirable foreigners by relying on census data from a time when there were far fewer Southern and Eastern European immigrants. While the Act succeeded in favoring Northern and Western European immigrants, it unsurprisingly led to an increase in unauthorized immigration from Southern and Eastern Europe.

Furthermore, anti-Semitism seethed beneath the law’s surface. As with the Muslim Ban, geography served as a stand-in for religion. As the bill’s sponsor, Senator Albert Johnson, argued, “Jews of the usual ghetto type . . . are filthy, un-American, and often dangerous in their habits.”¹⁷ President Coolidge, supporting these restrictions with the words, “America must remain American,”¹⁸ deemed the excluded as un-American, even antagonistic to U.S. national identity. As Coolidge suggested, the law defined the nation as not Italian, Jewish, Asian, disabled, poor, and so on.

The Ku Klux Klan also supported the law, agreeing that “America must remain American,” meaning white and Protestant.¹⁹ One year later, Adolf Hitler looked to...