Monday, November 24, 2014

Immigration History: Preface

President Obama's immigration announcement last week has divided constitutional scholars and political commentators. I've already written about my own indecision over the matter.

However, as much as it may look like an executive power grab, and as self serving as the Department of Justice's supporting memo may be, I have yet to see a persuasive response that seriously addresses the President's historical and legal arguments. Instead, what I have seen are very general statements about the apparently obvious "unconstitutionality" of the President's actions with no discussion about the dubious "constitutionality," strictly speaking, of the immigration structure as a whole. I've also seen statements attempting to distinguish this President's laxness in enforcing the deportation laws from prior Presidents, such as Reagan and Bush, doing the same things. Yet saying that this time it's different doesn't necessarily make it so, especially if the only difference is one of scale and not principle.

In short, instead of hearing sound criticisms of the President, I am hearing inadvertent declarations of ignorance about immigration law from the conservatives. This will never do if we want to be taken seriously.

So in light of this deficiency, I'm planning to take the next few weeks (or months) to introduce our readers to the history of American immigration law, its suspect origin, its inconsistent application, and its overall mess. Highlights will likely include:

  • Whether there is any authority in Article I of the Constitution for the legislature to create an immigration policy;
  • How for a time states had the ability to set their own immigration policies;
  • How an anti-immigrant stance by one of his rivals led to President Lincoln's nomination;
  • When strict enforcement of immigration laws resulted in returning a boat full of Jewish refugees to Adolf Hitler;
  • The times that presidents allowed large numbers of immigrants to enter without legal status in response to Communist takeovers of their home countries;
  • The time a chain of churches offered sanctuary to refugees who had no legal status, and through passive action successfully turned away immigration authorities; and
  • The hurdles and waiting lists that immigrants currently face.

I still do not know whether the President's action is constitutionally permitted, but what I can say after the last several days is that each article attempting to persuade me that it is, or is not, has pushed me toward the opposite conclusion. So part of this series is my own attempt to learn more about the history of our immigration system. I do not fully know where this series will go, nor how long it will take to complete. But I hope that you will join me for the journey. In the meantime, check out our prior immigration posts, especially the one laying out some groundwork for the immigration debate.

Next: Before the Constitution
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