Laws Harsh As Tigers

Chinese Immigrants and the Shaping of Modern Immigration Law

Lucy E. Salyer

• Publisher: The University of North Carolina Press
• Year: 2000
• ISBN:
  9780807864319
• Topic: Diritto
• Subtopic: Diritto dell'immigrazione

Focusing primarily on the exclusion of the Chinese, Lucy Salyer analyzes the popular and legal debates surrounding immigration law and its enforcement during the height of nativist sentiment in the early twentieth century. She argues that the struggles between Chinese immigrants, U.S. government officials, and the lower federal courts that took place around the turn of the century established fundamental principles that continue to dominate immigration law today and make it unique among branches of American law. By establishing the centrality of the Chinese to immigration policy, Salyer also integrates the history of Asian immigrants on the West Coast with that of European immigrants in the East. Salyer demonstrates that Chinese immigrants and Chinese Americans mounted sophisticated and often-successful legal challenges to the enforcement of exclusionary immigration policies. Ironically, their persistent litigation contributed to the development of legal doctrines that gave the Bureau of Immigration increasing power to counteract resistance. Indeed, by 1924, immigration law had begun to diverge from constitutional norms, and the Bureau of Immigration had emerged as an exceptionally powerful organization, free from many of the constraints imposed upon other government agencies.

CHAPTER 1
From Counting to Sifting Immigrants

The United States in the nineteenth century was a nation of immigrants.¹ Although American liberal ideology embraced this characteristic as a source of pride for most of the century, many Americans late in the century began to view the immigrant population as a threat. Instead of attracting honest, hardworking folk, America was becoming, in the words of one commentator, “an asylum for paupers, convicts, and cripples.”² Nativists increasingly called for policies to “sift” the desirable from the undesirable immigrants.³

Congress in the 1880s began to make “selective” immigration the official United States policy. Scholars describing the restrictive nature of late nineteenth-century immigration legislation generally point to the growing number of categories of excludable immigrants.⁴ Yet equally if not more important to restrictionists’ goals was the administrative structure created by Congress in 1891. The Immigration Act of 1891 lodged the power to regulate immigration firmly in the hands of the federal government. Furthermore, the act delineated a novel relationship between the administrators of immigration law—the superintendent of immigration and the secretary of the treasury at that time—and the federal courts: the decisions of the federal administrative officers were to be final, suggesting that immigration cases would not be subject to judicial review.⁵ The congressional decision to give federal administrators sole power to enforce immigration laws had significant ramifications for immigration policy, which are explored in later chapters.

Why Congress chose in 1891 to centralize immigration administration and to exclude federal courts from immigration decisions has not been adequately explained. Historians have not appreciated the importance of administrative structure to the implementation of immigration law. Immigration and administrative law scholars have been more sensitive to the effect of the clause forbidding judicial review, but they have looked only to doctrinal and theoretical explanations for the exclusion of courts from immigration policy.⁶

This chapter analyzes the social movement that gave rise to the restrictive legislation and to the particular administrative arrangement established by the act of 1891. The experience of Chinese immigrants in the United States is central to that story. The attention to Chinese may seem odd because Asians have long received different treatment than other immigrants, in law and in history. The Chinese exclusion laws regulated the entry of Chinese. The act of 1891 explicitly omitted Chinese from its reach, and until 1903 Chinese were not subject to the general immigration laws. Nevertheless, Chinese played an essential, though perhaps indirect, role in the development of immigration law. Beginning in 1882, Chinese began to use the federal courts, primarily in San Francisco, to challenge the administration of the Chinese exclusion laws. They were often successful, for the courts tended to interpret the laws more liberally than did the officer responsible for enforcing Chinese exclusion. I suggest that the difficulty administrators faced in implementing the Chinese exclusion laws affected the immigration administration created by Congress in 1891. Furthermore, Chinese litigation provided the precedent upon which much of later immigration law rested. Consequently, an understanding of the history and actions of Chinese immigrants is vital in reconstructing the history of early immigration administration and law.

THE CHANGING FEDERAL ROLE IN IMMIGRATION

For almost a century after its formation as a nation, the United States generally welcomed the arrival of new immigrants. Xenophobia had persisted in American communities since the colonial period, but both economics and ideology operated in favor of a benign immigration policy.⁷ The country was rich in resources but deficient in the labor needed to exploit these resources. Filling this void, immigrants helped to settle the expanding American frontier and, as industrialization took hold after the Civil War, provided much of the labor in the new factories and mines.⁸ A liberal ideology emphasizing equality and common humanity predisposed Americans to accept the new immigrants as well. The Declaration of Independence had set out the creed of inalienable human rights to life, liberty, and the pursuit of happiness. Such universal human rights, many Americans argued, mandated the free migration of people from country to country.⁹ Because they themselves or their families had taken advantage of their right to better their lives by coming to the United States, most Americans upheld the right of others to pursue the same path.

Accompanying these beliefs was a faith in the process of assimilation. Americans, as historian John Higham describes it, had a certain cosmopolitan image of themselves. Throughout the history of the United States, the country had grown from the infusion of peoples from other lands. Many Americans saw the mixture of these different people as a strength, and they believed, as expressed by Ralph Waldo Emerson, that “the energy of Irish, Germans, Swedes, Poles, and Cossacks, and all the European tribes—and of the Africans, and of the Polynesians,—will construct a new race, a new religion, a new state, a new literature which will be as vigorous as the new Europe which came out of the smelting-pot of the Dark ages.”¹⁰ The conglomeration of many nationalities was seen as one of the country's unique characteristics.¹¹ Oliver Wendell Holmes summarized the sentiment aptly: “‘We are the Romans of the modern world, the great assimilating people.’”¹² Immigrants became Americans, according to the assimilationist outlook, by participating in the political, economic, and social life of the United States. American political institutions and processes transformed the foreigner into a self-governing republican.

There were, of course, notable exceptions to the spirit of acceptance. Nativist sentiment, aimed especially at people whose culture and religion seemed most different from the English tradition, arose periodically. Such sentiment gave birth in the 1840s to the anti-immigrant Know-Nothing party, organized in response to the arrival of large numbers of Germans and Irish Catholics.¹³ Jews and Chinese were also continual targets of hostility.¹⁴

Anti-immigrant biases did not result, however, in any significant federal restrictive legislation during this period, and the major political parties distanced themselves from nativist movements. The dominant official stance toward immigrants remained one of open arms. The federal government demonstrated its positive attitude primarily by doing nothing to interfere with immigration. Aside from the Alien and Sedition Acts passed in 1798, Congress did not pass any restrictive legislation until 1875. It did, however, enact legislation in 1819 to protect immigrants and to provide basic information to the government on their arrival. The act of 1819 restricted the number of passengers allowed on a ship and required that immigrants be furnished with certain basic provisions on their voyage. The act also provided for the gathering of data on new immigrants, requiring the ship's captain to submit a list with the passengers’ names and other pertinent information.¹⁵ Thus the federal government assumed an accommodating and paternalistic role in the early history of immigration regulation, acting only to protect and to keep statistics on immigrants.¹⁶

The state governments, however, took a more active role in both promoting and restricting immigration. Many states, especially in the less populated West and South, encouraged immigration.¹⁷ Other states, particularly in the Northeast, established inspection systems and passed legislation to protect the community from undesired immigrants, especially the impoverished and criminal, who, it was feared, might become public burdens. In response to a 1788 congressional resolution calling for such local legislation, several states adopted laws forbidding the entry of convicts into their states.¹⁸ The poor were not welcome either, and states attempted through a variety of means to ensure that immigrants would not become public charges. New York and Massachusetts required masters of ships to post bonds guaranteeing that the state would not have to support immigrants who became indigent. States also collected a fee, known as a head tax, for each immigrant and placed it in a fund to help immigrants in need.

Masters and ship owners resented the states’ impositions and successfully challenged the statutes in a series of cases before the United States Supreme Court. States defended their regulations as a legitimate exercise of their police power; they proclaimed their right to protect their people from the evil effects of disease, immorality, and pauperism that many associated with immigration. The Supreme Court in 1837 upheld state provisions requiring the master of a ship to submit a detailed report on the passengers, ruling that the states had a right to know who was coming within their boundaries.¹⁹ The Court found other state laws unconstitutional, however, because they infringed on the federal government's power over interstate and foreign commerce. In a five-to-four decision in the Passenger Cases , the majority interpreted the transportation of passengers to be an act of commerce and viewed the states’ head taxes as an attempt to regulate foreign commerce. Arguing that the Constitution gave Congress the exclusive power to regulate interstate and foreign commerce, the majority found the state head taxes to be an unconstitutional infringement on federal power.²⁰

The decision did not deter the states from attempting to regulate immigration; it simply forced them to choose alternative methods. Justice John McLean in his opinion in the Passenger Cases had suggested that requiring ship masters or owners to post bonds for passengers likely to become public charges was a constitutional power of the states.²¹ Apparently taking the cue from Justice McLean, New York quickly enacted a new law prescribing that masters or owners of ships post a $300 bond for each passenger, thus ensuring that the state would not have to care for the person if he or she became needy in any way. The requirement of a bond was not novel, but New York added a clause that departed from former policies. If the master did not wish to post the bond, New York's law permitted him to pay $1.50 for each passenger within twenty-four hours of his or her landing. In effect, New York was collecting a head tax under a thin guise of requiring a bond. The Supreme Court in 1876, noting the real thrust of the New York law, invalidated this and similar legislation in Louisiana as an improper interference with foreign commerce.²²

The Court reserved its most scathing criticism for a California law that arose primarily in response to growing anti-Chinese sentiment. The law allowed the state commissioner of immigration to require a $500 bond or, in lieu of the bond, a sum of money which the commissioner thought adequate for any alien passenger who was likely to become a public charge because of physical or moral disabilities. (The main targets of the act, however, were Chinese women suspected of prostitution.) The state commissioner pocketed 20 percent of the fees collected, and the remainder went to the state treasury for the care of indigent citizens (not aliens). The Court denounced the law, saying, “in any view which we can take of this statute, it is in conflict with the Constitution.”²³ Not only did the law infringe on congressional power over foreign commerce, but it also vested a state official with arbitrary power and went “far beyond” the police power of the state to protect itself from immorality and pauperism.²⁴

With the 1876 cases, the Supreme Court effectively curtailed state involvement in immigration regulation. The federal government until this point still played a minimal role, primarily limited to protecting and keeping statistics on immigrants. But the shift to a more active stance was under way. Even before the Court delivered its opinions in 1876, Congress had passed its first restrictive law, the so-called Page Law of 1875.²⁵ The law represented a victory for anti-Chinese forces in California, who perceived that their state's attempt to regulate Chinese immigration would not survive the constitutional challenge brought by Chinese. They secured federal legislation forbidding the entry of Chinese, Japanese, and other “Oriental” laborers brought to the United States involuntarily, as well as that of women brought for the purpose of prostitution, a provision aimed particularly at Chinese women.²⁶

The federal government faced additional pressure from eastern states to assume more control as the state regulatory system fell apart. Those states receiving the most newcomers remained anxious; without the immigrant fund fed by the head taxes, local governments would have to support sick and indigent aliens. The New York Board of Emigration Commissioners and New York Board of Charities, finally accepting the Supreme Court's rulings that only the federal government could legislate in the area, began to lobby Congress to enact head taxes and to exclude criminals and paupers.²⁷

Though opposed by business interests who did not want to hamper immigration, New York succeeded in getting congressional action. With the Immigration Act of 1882, the federal government took a significant step toward a centralized and restrictive immigration policy. The act divided responsibilities between the federal and state governments: the secretary of the treasury assumed exclusive authority over immigration but awarded contracts to the states to administer the program on a day-to-day basis. The states thus retained a significant amount of control. They appointed the inspectors and commissioners of immigration, established rules for inspecting immigrants, and made the decisions whether to land applicants. The act also relieved the states’ financial burden by authorizing a federal head tax of fifty cents for each immigrant. The secretary of the treasury distributed the money collected to the states, in proportion to the number of immigrants they received, to be used for distressed or needy immigrants.²⁸ Finally, the act denied admission to convicts, lunatics, idiots, and persons unable to care for themselves.²⁹

In one sense, the Immigration Act of 1882 does not seem novel. The act followed the pattern of earlier colonial and state legislation in excluding paupers and convicts. Its main thrust aimed at protecting the states from the financial burden of indigent aliens. Yet the act of 1882 and, even more, that of 1875, represented significant departures for United States immigration policy. Whereas earlier nativist feelings had never penetrated official immigration policy, the movement to restrict immigration beginning in the 1880s was much more successful in molding federal legislation ...