Immigration Tutorial, Part 2
Home / Immigration / Immigration Tutorial, Part 2 /Immigration Laws and Recent Political Initiatives
Yes, many argue that immigration is the historical phenomena from which this country’s tapestry has been woven. Yet, almost from the beginning of our nation’s foundation, there have been individuals who have argued against increased immigration and laws passed with the express purpose of limiting immigration. In 1794, four years after the first Naturalization Act was passed, George Washington wrote in a letter to John Adams:
My opinion, with respect to emigration, is that except of useful mechanics and some particular descriptions of men or professions, there is no need of encouragement, while the policy of advantage of its taking place in a body…may be much questioned; for, by so doing, they retain the language, habits, and principles (good or bad) which they bring with them.
These sentiments were later echoed by Alexander Hamilton in 1802:
…foreigners will generally be apt to bring with them attachments to the persons they have left behind; to the country of their nativity, and to its particular customs and manners. They will also entertain opinions on government congenial with those under which they have lived; or, if they should be led hither from a preference to ours, how extremely unlikely is it that they will bring with them that temperate love of liberty, so essential to real republicanism? There may, as to particular individuals, and at particular times, be occasional exceptions to these remarks, yet such is the general rule. The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.
Whether spurred on by economic interests, labor issues, preferences for racial or ethnic groups, or national security concerns, the United States has enacted many laws dealing with immigration and naturalization. Article I of the Constitution grants Congress complete authority over immigration and naturalization. In 1790, Congress passed the first Naturalization Act which restricted naturalization to "free white persons" of "good moral character" and required applicants to have lived in the United States for two years before becoming naturalized. The Naturalization Act of 1795 increased the residency requirement to five years which is the present-day requirement, except for the three year requirement for alien women who marry U.S. citizens as provided in the Cable Act of 1922. Historically, there have been laws that have restricted or allowed specific racial or ethnic groups, such as the Chinese Exclusionary Act of 1882, the Geary Act of 1892, or the Chinese Exclusion Repeal Act of 1943. There have been laws to aid refugees and victims of natural disasters. The Displaced Persons Act of 1948 was designed to help people who had been displaced by World War II, while the Refugee Relief Act of 1953 aided victims of Communist persecutions. Another law in 1958 provided 1,500 special non-quota visas to earthquake victims of the Azores.
There have been attempts to regulate the personal qualifications of immigrants. In 1917, Congress passed the Literacy Test Act, over President Wilson’s veto. It stated that no alien over 16 would be admitted to the U.S. unless he could read some language. The law provided a rather modest requirement that the immigrant be able to read between 30 and 80 ordinary words in English or some other language. Since relatively few immigrants from southern and eastern Europe could meet the requirement, Wilson stated the purpose of the law was "restriction, not selection." Amazingly, since he was an educator, Wilson stated, "literacy is not a criterion of fitness to become a citizen."
More comprehensive laws to restrict immigration have been passed such as the Emergency Quota Act (1921), the Immigration Act or National Origins Act (1924) and the Immigration and Nationality Act (1952). The Emergency Quota Act set the annual maximum number of European immigrants from each country by setting a quota of three percent of the number of persons of each nationality living in the U.S. in 1910. The law put an overall limit of 357,000 on annual immigration. The National Origins Act established a new annual quota based on two percent of the nationals from each country present in the U.S. in 1890 and placed a maximum total of 150,000 immigrants per year. The 1924 Act barred immigrants from Asian countries entirely. Neither the 1921 nor 1924 quota law applied to citizens of countries in the Americas and Canada. The effects of the 1924 law were two-fold: 1) by changing the base year from 1910 to 1890 the law gave preference to immigrants from northern and western European countries over southern and eastern European countries; and 2) combined with the Emergency Quota Act, the flow of millions of immigrants a year before World War I was slowed to a trickle.
The Immigration and Nationality Act of 1952, or the McCarran-Walter Act, was an attempt to replace the 150-year-old patchwork of regulations with a single code that covered all immigration, naturalization and deportation procedures. Under the Act, immigration was limited to 154,657 persons per year. The basic quota provisions of the National Origins Act (1924) were kept, while the ban against admitting immigrants from Asian and other Pacific nations was removed. Admittedly, the quotas assigned to Asian nations were negligible. Screening measures to keep out subversives and other undesirables were strengthened and special powers were granted to the Attorney General to deport immigrants for "Communist and Communist-front" affiliations, even after they had been granted citizenship.
Dissatisfaction with the McCarran-Walter Act was stated in general terms in the Democratic Party platform of 1960:
We shall adjust our immigration, nationality and refugee policies to eliminate discrimination and to enable members of scattered families abroad to be united with relatives already in our midst. The national origin quota system of limiting immigration contradicts the founding principles of this nation.
Subsequently, President Johnson signed the Immigration Act of 1965 which abolished the quota system that had been established in the 1921 and 1924 laws. This new law allowed 20,000 immigrants annually from each independent country outside the Western Hemisphere, up to a maximum total of 170,000. The law allowed 120,000 immigrants from Western Hemisphere countries. Persons to be accepted were classified only by categories such as family relationship, skills, and refugee status. The 120,000 annually from the Western Hemisphere was exclusive of wives, unmarried children and parents of citizens or resident aliens. However, this was the first time that a ceiling had been set for the Western Hemisphere.
There has always been a migration of people from across the southern border into the United States who has not bothered to follow the immigration laws or procedures. By the 1980’s, the number of illegal aliens in the United States had reached serious levels. In 1985, when there was an estimated three to twelve million illegal immigrants (certainly not all from south of the border), New York Democrat Charles Schumer said legislation was needed "to solve the problem of millions of foreigners who live here illegally and unprotected" and "to alleviate the problem of the millions more who enter illegally every year." In 1986, President Reagan signed the Immigration Reform and Control Act (IRCA). Congress determined the best way to control immigration was to take away the incentives to enter the United States by preventing illegal immigrants from working or receiving government benefits. The Immigration Reform and Control Act made it illegal to knowingly hire or recruit illegal immigrants; required employers to attest to their employees’ immigration status by introducing the I-9 form to ensure that all employees presented documentary proof of their legal eligibility to accept employment; and provided sanctions for knowingly hiring an employee who was not legally authorized to work. The law denied illegal aliens federally funded welfare benefits. However, IRCA also granted amnesty to certain illegal immigrants who entered the U.S. before January 1, 1982, and had resided continuously and illegally present in the U.S. since January 1, 1982. The number of illegal aliens granted amnesty under IRCA is somewhat vague, but estimates range from one to three million.
As one could imagine, the flow of illegal immigrants did not stop with passage of IRCA. In 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), consisting of six different Titles and over 200 pages of legal language. Title I addressed border control by increasing the number of Border Patrol agents from 5,000 to 10,000 agents over a five-year period; allocated $12 million for the construction of a 14-mile triple fence along the US border from San Diego eastward; and provided that the INS would be able acquire state-of-the-art equipment including aircraft, helicopters, night vision goggles and four-wheel-drive vehicles. Additionally, it required that new border crossing identification cards must be issued and put in use before the year 2000. The new cards were to have "biometric identifiers" such as fingerprints or handprints that match the alien. The Attorney General was charged with developing an automated entry-exit control system within two years. The new system was to be used for collecting information on the number of departures, the number of departures successfully matched to records of an alien's entry to the US, and the number of aliens who arrived as non-immigrants for whom no departure records were found. New pre-inspection stations were to be set up in at least five of the foreign airports sending the greatest number of inadmissible aliens to the US. Title III of the Act overhauled the systems of exclusion and deportation, with most of the popular attention being focused on the provisions relating to "unlawfully present" individuals. The law provided that if a person has been in the U.S. for 180 days, but less than 365 days, they must remain outside the U.S. for three years unless they obtain a pardon. If they have been in the U.S. for 365 days or more, they must stay outside the U.S. for ten years unless they obtain a pardon. All of this applies regardless of whether the person has a United States citizen spouse and/or children. Other Titles of the Act cover enhanced enforcement and penalties for alien smuggling and document fraud, the removal of inadmissible and deportable aliens, and enforcement of restrictions against employment of aliens.
Despite these efforts, immigrants continued to illegally cross the border on a daily basis. In 2006, it was estimated that 1,500 people daily crossed the U.S.-Mexican border. The total number of illegal aliens in the United States in 2006 ranged from an estimated 11.5 to 12 million according to the Pew Hispanic Center. Of these, nearly half of all the unauthorized migrants living in the United States entered the country legally through a port of entry with a visa, but then "overstayed" after their visa had expired. A smaller share of the unauthorized migrants entered the country legally from Mexico using a Border Crossing Card and then violated the terms of admission by not returning to Mexico. The remaining number, over half, simply entered the country illegally.
Faced with the dilemma, Congress passed the Secure Fence Act of 2006 which specifically ordered the Department of Homeland Security to build two layers of reinforced fence along 700 specific miles of the nearly 2,000 mile U.S.-Mexican border. The Act also provided that additional physical barriers, roads, lighting, cameras and sensors were to be installed along the 700 miles of designated border.
So, where are we today? The Center for Immigration Studies estimates that there were 10.8 million illegal aliens in the country in the first quarter of 2009 compared to 12.5 million in the summer of 2007, equating to a 13.7 percent decline. The Center estimated that there had been a 1.6 percent decline from January 1, 2007 to January 1, 2008, while the Department of Homeland Security estimated a 1.5 percent decline during the same period. The salient point is that, according to the Center, the "overwhelming majority of illegal immigrants have not left the country, and tens of thousands of new illegal immigrants continue to settle in the country each year." Consequently, in 2009, the Council on Foreign Relations’ Task Force on U.S. Immigration Policy, co-chaired by former Florida Governor Jeb Bush and former White House Chief-of-Staff Thomas McLarty, issued a report urging Congress and the Obama administration to move ahead with comprehensive immigration reform legislation that achieves three "critical" goals:
- Reforms the legal immigration system so that it operates more efficiently, responds more accurately to labor market needs, and enhances U.S. competitiveness;
- Restores the integrity of immigration laws through an enforcement regime that strongly discourages employers and employees from operating outside the legal system, secures America’s borders, and levies significant penalties against those who violate the rules;
- Offers a fair, humane, and orderly way to allow many of the roughly twelve million migrants living illegally in the United States to earn the right to remain legally.
The Task Force outlined a series of specific recommendations for legislative and administrative reforms that they felt would be essential to an immigration policy that served the national interests.
President Obama had previously set the stage for such measures. Obama appointed Janet Napolitano to be Homeland Security Secretary. Napolitano, who opposes a border fence, supports "a stringent pathway to citizenship’ for illegal immigrants. As Governor of Arizona, she vetoed a bill requiring voter ID, vetoed a bill requiring local law enforcement to enforce immigration laws, and vetoed a proposal to allow local sheriffs to enforce immigration law. Local law enforcement of immigration laws have been provided by Section 287(g) of IIRIRA.
In December 2008, Obama chose Cecilia Muñoz, who had been a senior vice-president of the Office of Research, Advocacy and Legislation at the National Council of La Raza (NCLR), to be the Director for Intergovernmental Affairs. Muñoz has advocated a "pathway to citizenship" for illegal immigrants.
Whitehouse.gov. on January 21, 2009, published a document outlining Obama’s immigration agenda. It began by citing Obama’s May 23, 2007, statement on the floor of the U.S. Senate:
The time to fix our broken immigration system is now…We need stronger enforcement on the border and at the workplace…But for reform to work, we also must respond to what pulls people to America…Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should.
The document then proceeds to outline several steps to bring about immigration reform. Noteworthy among them are:
- Create Secure Borders: Protect the integrity of our borders. Support additional personnel, infrastructure and technology on the border and at our ports of entry.
- Improve Our Immigration System: Fix the dysfunctional immigration bureaucracy and increase the number of legal immigrants to keep families together and meet the demand for jobs that employers cannot fill.
- Bring People Out of the Shadows: Support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.
In June 2009, Senate Majority Leader Harry Reid and House Majority Leader Steny Hoyer indicated that they were in favor of enacting a comprehensive immigration reform package that included a "pathway to citizenship" for illegal immigrants. Reid said that the Senate would consider an immigration reform bill after the Senate had dealt with health care reform and cap and trade energy reform. He vowed to bring about comprehensive immigration reform that would include "bringing the 11 million people out of the shadows."
Even though Obama has apparently decided to delay his attempt at immigration reform until 2010, there were reports from Judicial Watch and The New York Times in October that the Director of the U.S. Citizenship and Immigration Services, Alejandro Mayorkas, was already preparing for the huge influx of applications that he anticipated when President Obama’s plan to legalize the estimated 12 million illegal aliens becomes law. Mayorkas is implementing several measures to process applications more quickly, including receiving visa forms in the mail and allowing illegal aliens to begin the legalization process through a simple mail-in registration form. This naturally has given rise to objections from several corners, most notably from Iowa Republican Representative Steve King, who is the ranking senior Republican on the House Immigration subcommittee.
So, where are we? We are in the same political-social-economic morass that we were in during 1986, twenty-three years ago.