It’s November already, can you believe it? In addition to colder temperatures and the end of daylight savings times (hello, darkness!), it’s also time for the most “American” of holidays—Thanksgiving. While the history of Thanksgiving is much more complicated than what is commonly taught in schools, it’s nevertheless an opportune time to reflect on our presence in this country as immigrants, refugees, and, yes, colonizers, and also reflect on how we have historically treated other immigrants and refugees. To that end, we are looking back at five major acts and cases in US history that have shaped and influenced US immigration law and policy.
1. The Chinese Exclusion Act (1882)
The Chinese Exclusion Act passed in 1882 was significant because it was the first time in American history that immigrants were barred from the US because of their race and class. The Chinese Exclusion Act, aimed to address the concerns of California workers worried that Chinese immigrants were taking their jobs and infiltrating their society, prohibited Chinese laborers, both skilled and unskilled, from entering the country for ten years. Additionally, it required every Chinese individual to carry a re-entry certificate when leaving and re-entering the country. In 1888, Congress took further measures by passing the Scott Act, which amended the Chinese Exclusion Act to bar all re-entry to the US, even for long-time residents. In 1892, Congress voted to renew the exclusion act for ten years in the form of the Geary Act, and the extension was made permanent in 1902. It took until 1943, when China was an ally in World War II, for the Chinese Exclusion Acts to be repealed.
2. Korematsu v. United States (1944)
In 1942, during World War II, President Roosevelt signed an executive order instructing the military to relocate all people of Japanese descent, regardless of citizenship status, to detention centers, which were referred to as “Assembly Centers.” Fred Korematsu, a US citizen living on the West Coast, refused to report to a detention center. Six months after the attack on Pearl Harbor, FBI agents arrested him. The American Civil Liberties Union (ACLU) represented Korematsu in court, challenging the executive order’s constitutionality.
In Korematsu v. United States, the Supreme Court decided that although the executive order affected innocent US citizens who found themselves unfairly detained, their hardships were a “military necessity” supposedly unrelated to race. The ruling was significant since the Supreme Court’s majority decided that denying civil rights to a single racial group could be justified if it was in the interest of national security. The decision was only overturned, in Trump v. Hawaii (2018), when the Supreme Court’s conservative majority renounced and effectively overturned the Korematsu decision, characterizing it as “gravely wrong the day it was decided” and “overruled in the court of history,” while upholding President Trump’s ban on travel into the US by nationals of seven countries. In her dissent, Justice Sonia Sotomayor also noted that while the “formal repudiation of a shameful precedent is laudable and long overdue,” it “does not make the majority’s decision here acceptable or right.”
3. The Immigration and Naturalization Act of 1965
The Immigration and Naturalization Act (INA) of 1965, passed thanks in part to support for the civil rights movement at the time, abolished an earlier national-origins quota system in place since the 1920s and established a new immigration policy that favored reuniting immigrant families and attracting skilled labor. The act gave preference to categories such as relatives of US citizens or permanent residents, those with skills deemed useful to the US, or refugees of violence or unrest. Even though the national origins quota was abolished the act placed caps on per-country and total immigration, as well as caps on each category. When President Lyndon B. Johnson signed the act into law he stated that it “is not a revolutionary bill. It does not affect the lives of millions….It will not reshape the structure of our daily lives or add importantly to either our wealth or our power.” That wasn’t entirely accurate. Instead, over the next forty years the act would significantly change American demographics and allow in more immigrants from countries in Asia, Africa, and Latin America, as opposed to primarily Europe.
In the years following the act, immigration to the US from Asian countries—in particular, Vietnam and Cambodia—more than quadrupled, and the US welcomed millions more who fled countries and regions where the US was engaged in the Cold War, including Cuba and Eastern Europe. In the 1950s, more than half of all immigrants were Europeans and just six percent were Asians, but by the 1990s only sixteen percent were Europeans and thirty-one percent were of Asian descent, while the percentages of Latino and African immigrants had also dramatically increased. A report by the non-profit organization Migration Policy describes the significance and impact of the 1965 Act: “The law’s proponents see it as a historic success and assert that the estimated 59 million immigrants who have come to the United States since its passage have made the country younger, infused it with diversity and talent, and generated prosperity and economic growth.”
4. Windsor v. United States (2013)
While not directly related to immigration, United States v. Windsor ended up having a significant impact for many foreign nationals in same sex relationships who wanted to apply for permanent residency and ultimately US citizenship. In June 2013, the Supreme Court ruled that section three of the "Defense of Marriage Act" (DOMA) was unconstitutional and that the US government could not discriminate against married same sex couples for the purposes of determining federal benefits and protections, including immigration benefits.
The case came about after the US government refused to recognize the marriage of Edie Windsor and her long-time partner Thea Spyer, who had been married in Canada in 2007. When Thea died after a long illness, the federal government taxed Edie's inheritance from Thea as though they were not spouses. Edie filed a lawsuit that eventually successfully challenged the constitutionality of DOMA, which had required that disparate tax treatment. Shortly after the Supreme Court ruling, advocacy group Immigration Equality calculated that 36,000 same-sex couples could possibly benefit from this decision by pursing permanent residency and US citizenship.
5. Trump v. Hawaii (2018)
In Trump v. Hawaii, the Supreme Court allowed President Trump’s third iteration of his Executive Order—often referred to as the “travel ban” or “Muslim travel ban”—that restricted immigration to the US by citizens of seven countries, of which five are predominantly Muslim. Yale professor Cristina M. Rodríguez noted that this ruling is significant since the Supreme Court “elided powerful evidence of discriminatory motive and proclaimed vast presidential powers at the intersection of two highly sensitive realms of regulation—national security and the policing of entry to the nation.” In his opinion for the majority, Justice Roberts first rejected the argument that the order exceeds the president’s authority under federal immigration laws, noting that the Immigration and Nationality Act “exudes deference” to the president and gives him “broad discretion to suspend” the entry of noncitizens to the US. Consequently, Justice Roberts argued, the president can block foreign nationals from entering the US if he determines that allowing them to enter “would be detrimental to the interests of the United States.”
In her dissent, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) noted that the majority’s decision “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” It does so “by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” Sotomayor also pointed out the parallels to Korematsu v. United States, and noted that the majority’s decision “merely replaces one gravely wrong decision with another.”
Conclusion
What can we say? Although there are a couple bright spots, these cases and acts on the whole demonstrate that the US government has a very troubled history of racial and discriminatory laws and policies targeting immigrants, refugees, and people who some might consider “other.” As you count your blessings and consider what you are grateful for this Thanksgiving, we will leave you with the words of Fred Korematsu, who wrote: “If someone is a spy or terrorist they should be prosecuted for their actions. But no one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.” Oh yes, and Happy Thanksgiving!
This post was drafted with the assistance of Audrey Kim, our 2019 summer intern.