Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors. By: Francisco Canales

Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors.

By: Francisco Canales 

Donald J. Trump will likely go down in history as one of the most controversial presidential candidates in the United States—alongside Huey Long, George Wallace, and Pat J. Buchanan. Recently, Trump picked a fight with a war hero’s family—the Kahns.[1] This fight erupted from his facile plan to protect the United States from attacks carried out by radical Islamic terrorists. He proposed banning “all Muslims” from entering the United States, demonstrating an obvious disregard for peaceful and patriotic Muslims like the Kahns. [2] Trump’s bombastic rhetoric along with his ban proposal incited the Kahns and other Muslim-Americans to speak publicly against him.[3]

In light of Trump’s controversial proposal, this post seeks to analyze United States immigration policies—specifically targeting and banning a group from traveling or migrating to the United States on the basis of nationality, ethnicity, and ideology—that have been implemented.[4]

Where is Trump coming from?

Understanding the political environment of the Republican primary is important to understanding Trump’s rhetoric and immigration proposal. At the time Trump pronounced publicly his proposal, Trump was fighting to win his party’s nomination, and using such bombastic rhetoric galvanized his base to go out and vote for him. And he won the nomination by convincing margins.

As historian Dr. Stephen Schwab notes, the United States’ vulnerability to “successful penetrations and attacks by foreign adversaries” was shown by the “covert actions” of Arab terrorist on 9/11.[5] This vulnerability vividly illustrates the immense and continuous challenges to U.S. national security.[6] After 9/11, jihadist groups like ISIS and lone-wolf terrorists inspired by radical Islamism have continued to cause havoc in American communities.[7] On December 2015, a radical Muslim couple killed fourteen of their friends and acquaintances in St. Bernardino, California.[8] The evidence indicates, according to the FBI, that the wife and husband both pledged their allegiance to the Islamic State.[9] In response to the attack, Trump manifested his proposal to prevent future attacks on U.S. soil by “radical Islamic terrorism,”[10] calling for a temporary travel ban for all Muslims. Some of his fellow Republicans did criticize him for preying on people’s fears and fueling nativist rhetoric.[11]

Déjà vu?

But can Americans really tolerate the enforcement of immigration bans similar to Trump’s? History says, maybe. Several federal laws explicitly banning the travel and migration of groups coming from Asia and other regions have been implemented. Other bans have targeted groups for believing in ideologies that were unequivocally rejected by the majority of Americans.

Chinese Exclusion Act of 1882

The first infamous ban of Asian immigrants in American history is the Chinese Exclusion Act of 1882—federal legislation that explicitly suspended immigration for a specific nationality.[12] This basic exclusion law prohibited Chinese laborers—defined as “both skilled and unskilled laborers and Chinese employed in mining”—from entering the country.[13] The Act, however, specified that “Chinese persons other than laborers” were exempt from the exclusion.[14]  The passage of the Act represented the outcome of years of racial hostility and anti-immigrant agitation by white Americans.[15]

Subsequent amendments to the Act prevented Chinese laborers who had left the United States from returning. The Scott Act of 1888 prohibited immigration, for twenty years, of all Chinese subjects except officials, teachers, students, merchants, or tourists; persons fitting those categories were required to produce certificates from Chinese authorities, countersigned by American representatives.[16] In 1892, the Geary Act extended the system of Chinese Exclusion and required all Chinese to carry on their person a U.S. resident permit.[17]

The exclusion laws had significant impacts on Chinese immigrants coming to America and their communities.[18] Chinese immigrants were placed under a tremendous amount of government scrutiny and were often denied entry into the country on any possible grounds.[19] Chinese communities underwent dramatic changes as well. Families were forced apart, and businesses were closed down.[20] These effects are important to be underscored if Trump is serious about pushing such proposal; because like what happened at the end of the 19th century to the Asian communities in America, Muslims coming to America and their communities here will suffer the same consequences of such travel ban.

Immigration Act of 1924

As nativist sentiment spread, Congress expanded the system of national targeting of other immigrants, including those from Japan and Southern and Eastern Europe.[21] Beginning in 1920, a series of congressional hearings were held to identify problems that immigrants were causing the United States. Tabulations showing that certain immigrants, particularly those from Italy, Greece, and Eastern Europe, were significantly overrepresented in American prisons and institutions for the “feebleminded” were presented.[22] Further, compiled data suggested that these groups were contributing too many genetically and socially inferior people.[23] In 1923, the U.S. Secretary of Labor was sent to Europe to investigate the feasibility of a plan to interview prospective immigrants, similar to Trump’s extreme vetting plan, before embarking to the United States.[24]

The secretary’s testimony and the data presented before Congress ultimately led to a new immigration law in 1924. The Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion severely restricted the annual immigration of individuals from countries previously claimed to have contributed excessively to the dilution of American “good stock.”[25] This law primarily restricted immigration of Southern and Eastern Europeans and outright banned the immigration of Arabic and Asian groups.[26]

Immigration Acts of 1903 and 1918

The U.S. government traditionally has employed the immigration laws, particularly the provisions pertaining to the deportation and exclusion of aliens, to attack perceived threats to the domestic status quo. The assassination of President McKinley by a self-proclaimed anarchist and son of Polish immigrants, along with labor strife, culminated in congressional passage of a law in 1903.[27] The Act of 1903 targeted and excluded those from entering the country believed to be a threat to governmental institutions.[28]  It “reflected broader national concerns about radicals in the labor movement. A growing belief that the ‘new immigrants’ from Eastern and Central Europe held political values that threatened the existing social and political status quo helped fuel the attack on anarchism.”[29]

Building on the spirit of the 1903 Act and clarifying ambiguities tangled in the courts, Congress passed the 1918 Immigration Act.[30] The Anarchist Act of 1918 permitted the exclusion or deportation of “aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law.”[31] The federal government employed these immigration law’s ideological provisions to promote domestic ends, deporting undesirables like labor leaders.[32] Similar to Trump’s arguments in support of his ban, these Acts sought to preserve the health of a free republic and the well-being of its people.

The evolution of Trump’s travel ban now in the general election

The U.S. Congress has endorsed several legitimate public policy rationales to enact travel or immigration bans—health and safety, morality,[33] and national security.[34] Veiled under these rationales, bans have dichotomously targeted members on the basis of race and ethnic composition. Now in the general election, the Trump campaign seems to be analyzing the nuances of this issue (Islamic terrorism), moving away from explicit discrimination.[35] Like Hillary Clinton’s current positions on key political issues, Trump’s travel ban has “evolved.”[36] In other words, he advocates now for a more sophisticated and robust process for vetting travelers coming from regions of the world known to have been influenced by radical Islam and an absolute ban for those coming from Syria.[37] This new version resembles immigration bans referenced in this post; it may be a correct step to protect our nation, but its xenophobic roots cannot be so easily plucked.

In conclusion, many have discounted Trump’s ban proposal as inconsequential, bombastic rhetoric. Others think that this ban is impossible to pass both chambers of Congress and be signed into law, and later implemented. But as history shows, the nativist sentiments of this country can make Trump’s proposed ban a reality. Thus, it is important for all—conservatives, liberals, libertarians, and independents—to vigorously question potential laws that wall-off our allies, especially if they endeavor to protect our freedoms and values.

[1] See Eliza Collins, The Trump-Kahn feud: How we got here, usa today (Aug. 2, 2016), http://www.usatoday.com/story/news/politics/onpolitics/2016/08/01/trump-khan-feud-timeline/87914108/.

[2] See Russell Berman, Donald Trump’s Call to Ban Muslim Immigrants, The atlantic (Dec. 7, 2016), http://www.theatlantic.com/politics/archive/2015/12/donald-trumps-call-to-ban-muslim-immigrants/419298/.

[3] See Aziz Ansari, Aziz Ansari: Why Trump Makes Me Scared for My Family, n.y. times (June 24, 2016), http://www.nytimes.com/2016/06/26/opinion/sunday/aziz-ansari-why-trump-makes-me-scared-for-my-family.html?_r=0.

[4] It is important to note at the outset, however, the author does not support Trump’s temporary travel ban.  One can reasonably foresee that if implemented, the negative consequences from it to our financial system will be great, decimating international trade. It will hurt public and private organizations that have Muslim members traveling to the US. This travel ban will blemish the United States’s posture in the world and likely dismantle the comity shared between the United States and other countries, including European countries like France, which has a significant Muslim population. Additionally, such a policy will harm our relationships with our friends living in Muslim communities across the United States. Equally important, as Mr. Kahn punctually suggested, this ban maybe in violation of our nation’s most important founding document, The United States Constitution. However, historically, the U.S. Supreme Court has taken a hands-off approach when asked to review the Congress’s immigration decisions and policymaking under the plenary power doctrine. Mathews v. Diaz, 426 U.S. 67, 81 (1976).

[5] Stephen Irving Schwab, Sabotage at Black Tom Island: A Wake-Up Call for America, 25 international journal of intelligence and counterintelligence 367, 368 (2012).

[6] Id. at 388.

[7]See, e.g., Everything we know about the San Bernardino terror attack investigation so far, La times (December 14, 2015), http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html; Ralph Ellis et al., Orlando shooting: 49 killed, shooter pledged ISIS allegiance, cable news network (June 13, 2016), http://www.cnn.com/2016/06/12/us/orlando-nightclub-shooting/; Michael Ray, Boston Marathon bombing of 2013, Encyclopedia britannica (last updated May 17, 2016), https://www.britannica.com/event/Boston-Marathon-bombing-of-2013.

[8] Everything we know about the San Bernardino terror attack investigation so far, supra note 8.

[9] Id.

[10] Berman, supra  note 2.

[11] Callum Borchers, The media loved Marco Rubio’s defense of Islam. GOP voters? Probably not so much, wash. post, https://www.washingtonpost.com/news/the-fix/wp/2016/03/11/the-media-loved-marco-rubios-defense-of-islam-gop-voters-probably-not-so-much/.

[12] Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882), repealed by Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600. See, e.g., Separate Lives, Broken Dreams: Chinese Exclusion Era Case Files of the National Archives and Records Administration, Immigration Documents (stating that “in 1882, with a stroke of President Chester Arthur’s pen, the Chinese Exclusion Act became the first race-based immigration law in U.S. history”).

[13] Chinese Exclusion Act, ch. 126, 22 Stat. 58.

[14] Chinese Exclusion Act 6, 22 Stat. at 60.

[15] Yuning Wu, Chinese Exclusion Actbritannica academic (Nov. 13, 2013), http://academic.eb.com.libdata.lib.ua.edu/levels/collegiate/article/605479#.

[16] See Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 468 n. 295 (2005).

[17] Act of May 5, 1892 (Geary Act), ch. 60, 1, 6-8, 27 Stat. 25, 25-26 (repealed 1943). Numerous other acts were passed during this time that further restricted Chinese immigration. See Act of July 5, 1884, ch. 220, 23 Stat. 115 (repealed 1943) (amending and tightening restrictions in the Chinese Exclusion Act); Act of Oct. 1, 1888 (Chinese Exclusion Act), ch. 1064, 25 Stat. 504 (repealed 1943) (same); Act of Nov. 3, 1893 (McCreary Act), ch. 14, 1-2, 28 Stat. 7, 7-8 (repealed 1943) (requiring certification of residency for Chinese laborers, and defining “laborer” to include skilled and unskilled immigrants); Act  of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390 (granting customs officers final authority to exclude Chinese  “unless reversed on appeal by the Secretary of the Treasury”).

[18] See Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 859 (1987) (stating that “the Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension.”).

[19] Wu, supra note 17.

[20]Id.

[21] See Act of Feb. 5, 1917 (Immigration Act of 1917), ch. 29, 2, 29 Stat. 874, 876 (repealed 1952) (restricting Asian immigration); Act of May 19, 1921 (Quota Act (Three Per Cent Act)), ch. 8, 2, 42 Stat. 5, 5 (repealed 1952) (establishing the three percent immigration quota limit); Act of May 26, 1924 (Immigration Act of 1924), ch. 190, 11, 43 Stat. 153, 159 (repealed 1952) (reducing the quota to two percent).

[22]  P.K.W, Eugenicsbritannica academic (May 10, 2016), http://academic.eb.com.libdata.lib.ua.edu/levels/collegiate/article/33201#259727.toc.

[23] Id.

[24] Id.

[25] Id. (Pub.L. 68–139, 43 Stat. 153, enacted May 26, 1924).

[26] See Id.

[27] See Select Comm’n on Immigr. and Refugee Pol’y, Staff Rep.: U.S. Immigration Policy and the National Interest 732 (1981) (linking passage of Immigration Act of 1903 to assassination of President McKinley).

[28] Immigration Act of March 3, 1903, ch. 1012, 2, 32 Stat. 1213, 1214, repealed by Immigration Act of February 5, 1917, ch. 29, 38, 39 Stat. 874, 897.

[29] John A. Scanlan, Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran-Walter Act, 66 Tex. L. Rev. 1481, 1493 (1988).

[30] Anarchist Act of October 16, 1918, ch. 186, 40 Stat. 1012, amended by 8 U.S.C. 137 (1925-26) (repealed 1952).

[31] Id.

[32] See, e.g., Jay v. Boyd, 351 U.S. 345, 348 (1956) (permitting Attorney General to deport 65-year-old noncitizen who entered United States in 1921); Galvan v. Press, 347 U.S. 522, 523, 531-32 (1954) (upholding deportation of man who had lived in United States since 1918); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 208 (1953) (refusing re-entry into country of lawful permanent resident who had lived in United States for 25 years).

[33] Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477, 477.

[34] See 40 Stat. 1012; see also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (Apr. 24, 1996), reprinted in 1996 U.S.C.C.A.N. (110 Stat. 1214).

[35] Jeremy Diamond, Trump on latest iteration of Muslim ban: ‘You could say it’s an expansion,’ Cable news network (July 24, 2016), http://www.cnn.com/2016/07/24/politics/donald-trump-muslim-ban-election-2016/ (“I’m looking now at territory. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”)

[36] See How Donald Trump’s Plan to Ban Muslims Has Evolved, fortune (June 28, 2016), http://fortune.com/2016/06/28/donald-trump-muslim-ban/; see also Scott Detrow, Trump Calls to Ban Immigration from countries With ‘Proven History Of Terrorism, nat’l pub. radio (June 13, 2016), http://www.npr.org/2016/06/13/481910989/trump-expands-immigration-ban-to-countries-with-proven-history-of-terrorism (Trump “is currently hedging on whether his plan to ban all Muslim travel, a signature campaign proposal that is still on his website, remains his current position.”).

[37]Alex Pappas, TEXT: Donald Trump’s Speech in Phoenix On Illegal Immigration, Daily caller (Aug. 31, 2016), http://dailycaller.com/2016/08/31/text-donald-trumps-speech-in-phoenix-on-illegal-immigration/.

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