THE REVOLUTIONARY IMMIGRATION CYCLE?

• Author: Moore, Brian W.

John McCain appears to have been a sage when, during his failed 2008 presidential campaign, he admonished the nation that "[e]ections have consequences." This statement appears to be accurate as it relates to past and present immigration policy of the United States. The history of immigration law teaches that citizens must pay attention to the candidates they elect to the executive and legislative branches, and that, when viewed in the historical context, new or confusing immigration policies are generally not as extreme as they may initially appear.

In addition to discussing the evolutionary changes to immigration policies, this article will discuss the federal actors that shape immigration policy and how they have influenced these policies throughout the history of the United States. The Congress and the White House are primarily responsible for determining the direction of immigration policy. This is particularly true when, until 2017, the whole of immigration law reflected that the judicial branch has taken a deferential approach to the executive and legislative branches in these matters.

1. THE ACTORS AND POLICIES

   The history of immigration law in America commenced at the founding of the United States. Shortly after the Revolutionary War, Congress passed regulations concerning immigration and naturalization. (1) By 1795, Congress was imposing stricter requirements for naturalization, including a five-year residency requirement. (2) Over the next seventy-five years, the federal government did very little to regulate immigration. (3) However, the laissez-faire attitude toward the regulation of immigrants began to change in the 1840s. (4) During this time, immigrants from Ireland sought to escape the potato famine, while immigrants from other European countries fled economic depression. (5) The influx of primarily Catholic immigrants caused concern among the established Protestant population in the U.S. (6)

   By the 1860s, the expansion of railroad lines opened land in the West for settlement. (7) Labor was in great demand not only for the railroads, but also for the mines and new cities that were cropping up. (8) The "old" immigrants, who had immigrated thirty and forty years previously, had settled into civilization and become familiar. (9) However, these new immigrants, primarily from Asia, appeared more "foreign" due to different coloring, physiques, customs, and languages. (10) They were scrutinized closely. Many university professors even taught that the new immigrants would never be "100 percent American." (11)

   This mistrust of new immigrants, particularly Asian immigrants, led to one of the most extreme, restrictive immigration policies in U.S. history: the Chinese Exclusion Act. (12) Previously, Chinese immigrants had been welcomed into the U.S. to help lay railroad lines for the transcontinental railroad and to work in the mines. (13) However, once the railroad was complete, people became suspicious of Chinese immigrants and considered them likely to engage in crime. (14) In 1882, in response to the anti-Chinese sentiment, Congress passed the Chinese Exclusion Act, (15) which imposed difficult barriers to Chinese immigration. (16) In addition to stopping virtually all immigration from China, the act also denied citizenship to Chinese immigrants already in the U.S. (17)

   The Chinese Exclusion Act reflected the concern of many that the U.S. was not big enough for everyone. (18) The closing of the U.S. frontier contributed to this spatial concern. (19) Additional factors included growing cities, immigrants' persistence in maintaining traditions, and the admission of many new Catholic and Jewish immigrants. (20)

   Several years after the Chinese Exclusion Act was passed, the Supreme Court perpetuated the trend toward restrictive immigration policies when it decided a landmark case involving the definition of citizenship. (21) Like the Chinese Exclusion Act, this citizenship case, Elk v. Wilkins, is an example of an extreme, restrictive policy. (22) In Elk, the Court ruled that Native Americans were not citizens, even if they later severed ties with their tribes. (23) In reaching its decision, the Court considered the citizenship requirements of the Fourteenth Amendment, (24) which states, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (25) The Court interpreted the Fourteenth Amendment to mean that U.S. citizens were completely subject to the political jurisdiction of, and owed direct allegiance to, the United States. (26) The Court reasoned that Native American children born in the U.S. were still subject to the tribe's political jurisdiction and, thus, owed some allegiance to their tribe. (27) Additionally, the Court considered Native Americans to be "alien[s] through dependent power," similar to a foreign ambassador's child born in the U.S. (28) A few years later, Congress reversed the effects of Elk by passing the Allotment Act of 1887, which granted citizenship to Native Americans born in the U.S. (29)

   In 1886, the Supreme Court adopted a more liberal approach to immigration when it considered the applicability of equal protection to individuals residing in the U.S. who were not U.S. citizens. In Yick Wo v. Hopkins, a San Francisco, California ordinance required all laundries to be located within wooden buildings to obtain a city permit. (30) The government claimed the ordinance was designed to promote safety, (31) but the unequal application of the ordinance convinced the Court otherwise. (32) San Francisco issued permits to all but one of the non-Chinese laundries that applied for a permit, (33) while all Chinese laundry applications were denied. (34) The Court decided that these facts constituted extreme evidence of discriminatory intent and thus, that the ordinance violated equal protection requirements. (35) In deciding Yick Wo, the Court declared that the guarantee of equal protection extended not only to U.S. citizens, but also to noncitizen residents within U.S. jurisdiction. (36)

   In the years following Elk and Yick Wo, tightened federal laws prevented most Chinese immigrants from obtaining citizenship. (37) In 1898, the Supreme Court addressed whether the citizenship of a child born in the U.S., whose parents were immigrants, was tied to his parents' ability to obtain citizenship. (38) A child, Wong Kim Ark, was bom in the U.S. to Chinese parents who had entered the U.S. but who could not be naturalized due to federal laws. (39) After a brief visit to China, Wong Kim Ark, by then a young man, was denied entry to the U.S. on the grounds that he was not a citizen. (40) The Court held that Chinese descendants born in the U.S. were citizens regardless of whether their parents were able to obtain U.S. citizenship. (41) It reasoned that the Fourteenth Amendment only gave Congress the power to regulate naturalization; it could not restrict citizenship of individuals born in the country. (42) Thus, individuals born in the U.S., even children born to tourists and undocumented aliens, possess U.S. citizenship. (43)

   Less than a decade after the Wong Kim Ark case, Congress was called upon to exercise its regulatory power once again. In 1906, Congress introduced legislation to add a literacy test for immigration and naturalization, as well as an English-language requirement for naturalization. (44) The legislation did not pass, but its sentiment did. Proficiency in the English language was added as a citizenship requirement, (45) signaling a continuing trend of moderately restrictive immigration policies.

   Shortly after the new citizenship requirements were enacted, the United States Immigration Commission, commonly known as the Dillingham Commission, produced a report on the impact of immigration in U.S. culture. (46) The report concluded that 20th century immigration was vastly different from earlier immigration in that new immigrants were composed of so-called inferior people. (47) Due to the inferiority of the new immigrants, the Commission concluded, the U.S. no longer benefitted from a liberal immigration admission policy. (48) As a result, the Commission report encouraged the U.S. to impose new restrictions on immigration. (49)

   New restrictions were imposed a few years later, after the U.S. entered World War I. (50) In 1917, Congress finally overrode a presidential veto and enacted a literacy...