Abstract

Excerpted From: Daniel I. Morales, Immigration Law and the Production of “Crisis”, 46 Houston Journal of International Law 27 (Fall, 2023) (65 Footnotes) (Full Document)

As long as there has been immigration law, immigration has been in “crisis.” When states and localities controlled immigration--before the national government took over after the Civil War--the “crisis” was the influx of poor Irish immigrants, like President Joe Biden's ancestors. When those Irish, fleeing famine, arrived in Boston harbor after their long Atlantic journey in tiny coffin ships--and after forty days of quarantine--they looked terrible: hungry, dirty, weak, and desperately poor. On top of it all, they were Catholic. Between their desperate appearance and purported fealty to the Pope in Rome, Boston Brahmins declared a “crisis” and started deporting people summarily. The Irish were not “sending their best,” the Bostonians thought, much like former President Trump said of refugees from Central and South America.

Then there was the “crisis” that birthed national immigration law as we know it. In the late nineteenth century, Chinese immigrants landed on the West Coast. These migrants were invited and worked legally under labor contracts, which provoked a new, more head-scratching “crisis.” The Chinese “worked too hard;” they did “terrible,” destabilizing things like subsisting on cheaper meat than red-blooded, white American men. They did not usually have families to support--their ways and manners struck everyone who mattered in politics as unchangeably odd. The “crisis” got so bad in the eyes of the “white ethnics,” threatened by the Chinese presence, that these whites drove the Chinese out of their local communities on the West Coast; and they lynched some of them too. These mob-led community expulsions in the American West often had the explicit or tacit support of local, state, and even national authorities.

To stop the “crisis” of the Chinese and the local reaction to them, Congress rewarded the vigilantes, barring Chinese nationals from immigrating because of their race and barring those already here from naturalizing because of their race. The Supreme Court signed off on the whole matter, saying that the Constitution did nothing to prohibit a blanket race-based prohibition on immigrant entry despite the adoption of the Reconstruction Amendments to the Constitution, which might have easily been interpreted to forbid race-based exclusions. This episode birthed modern, consolidated national control of immigration law--the basic structure that we live with today.

The next “crisis” was in the 1910s to 1920s. Now the trouble was so-called “white ethnics” and Jews. These were largely the same “white ethnics”--Poles, Slavs, Italians, Greeks--that were earlier rewarded for driving the Chinese out of California. The nub of the difficulty was said to be that these “white ethnics” and Jews just were not very bright. “Definitive” studies from prominent researchers at prestigious universities purported to show that the Italians, Greeks, and Jews intrinsically had low IQs. There was nothing to be done, and it was just the way God made them, the academics claimed. At stake in these “scientific” claims about immigrants' mental capacity was nothing less than the “fitness” of the nation as a whole, or so urged the social Darwinists' ascendent during this period. Nativists, with the backing of scientific authority, urged that if we kept admitting members of these ethnic groups “proven” to be dim bulbs, then our population would become progressively less bright. Perhaps we could tolerate a handful of them, but there were just so many of them coming in--it had to stop. And so it did. Congress passed the Quota Acts which allocated visas based on the national origins of the population at the founding. The idea was that we could make “America Great Again” if we just increased immigration from that original Northern European stock: English, Scotch, German, Scandinavian.

As European sources of labor declined in the wake of migration restrictions from Europe, the industry became more dependent on African American labor from the South, as well as labor from Mexico. The movement of Mexican nationals remained technically unrestricted, even after the passage of the Quota Acts. U.S. industry and agriculture wanted Mexican labor, but society racialized Mexicans negatively, as they had the Chinese, leading to socially and legally subordinate treatment. Most shamefully, long-resident Mexican workers--including many U.S. Citizens--were deported en masse when their labor was no longer needed. Whatever the predations and prejudices meted out to European immigrants, Europeans, including Jews, who were present on American soil were largely treated by the government as Americans in training--or, “Americans in waiting” as one prominent scholar puts it. Mexican immigrants and citizens never enjoyed this dispensation.

By now I hope I have painted the picture adequately: the country Americans cherish today is not made up solely or even predominantly of White Anglo-Saxon Protestants of the “old American stock.” Instead, today, our population, our power, and glory is a motley crew of yesterday's “riff-raff” that was excluded, lynched, driven out, and made disposable--a process that sadly continues. Yet the arrival of these people back then and today--from less favored European countries, Asia, and Latin America--was always met with cries of “crisis.” Was immigration ever a real crisis? Why did it seem like a crisis at the time?

My answer is that immigration is rarely an actual, long-term, or even medium-term, material “crisis”--an actual real threat to the values of this country, our way of life, or our economy. I want to suggest that immigration law itself creates the specter of a “crisis” that haunts immigration politics, not the other way around: the immigration “crisis” is immigration law itself. Restrictive immigration policies are what drive human movement into forms, tableaus, and pictures that look like a menace.

Consider some scenes of our current immigration “crisis” in the U.S. and Europe. At the Global North's border with the Global South, an unprecedented mobilization of resources and capital has been deployed to keep out migrants.

The “crisis,” as Europe paints it, is the people who decide to pay smugglers to take them on unsafe boats to Spain, Italy, Greece, and other points of Europe--accessible through the Mediterranean to the African Continent. The journey is dangerous, and the risk of death is high. The Missing Migrant Project counts 28,013 people who likely died en route from the Mediterranean to Europe. Sit with those statistics and the persistence of the rafts and the dreams that they carry: the consistent and sustained nature of the embarkation to Europe has been happening in large numbers for at least two decades. Over that period Europe has been saturated with the imagery of these crossings--the overcrowded boats, rafts, and barges teeming with negatively racialized black, poor, bodies: these are the images that constitute the “crisis.” But do these pictures and the movement that they depict, evince a “crisis” different than the “crises” I described in the past--the “crises” of the Irish, the Italians, the Jews, and the Chinese?

Let's break it down. When we call something a crisis, it implies a temporary state. There is a “pre-crisis”, a “crisis”, and a “post-crisis.” After all, Webster's Dictionary defines “crisis” as a “state of affairs in which a decisive change is impending.” One way of thinking about what is happening in the Mediterranean is to consider what would need to happen to shift us from “crisis” to “post-crisis,” or what would ease the “crisis.” To ask this question is also to ask: what end state do we seek? It's clear that Europeans, or European leaders, want these embarkations by boat from Africa to Europe to stop. Such an end state may be possible through the imposition of extraordinary force or draconian penalties for entering Europe to seek asylum, or through armed European guards forcibly preventing embarkations in their countries of origin. But if the boats don't come under these conditions, is the “crisis” over?

From the European point of view, yes--yes it would be. The boats, and the bodies, and the bodies and the boats; they are a constant irritant because they force Europe to confront the contradiction and dissonance in the reality of “fortress Europe” with hard borders that drown people with the unreal, idealized way that Europeans view themselves as defenders of Human Rights-as free thinkers, the people of the enlightenment. The dead bodies floating in the ocean expose the hollowness of that self-conception. When the boats stop and the bodies stop, the crisis of identity--the constantly exposed contradiction--stops for the Europeans.

Does such an end state stop the “crisis” from the perspective of the migrant? Almost certainly not. For the migrant, the “crisis” was never the Mediterranean. The sea was just the available means of relieving the migrant's actual crisis. Barring an expansion of invited routes to migrate, the Mediterranean is the path to freedom or safety, or something better than what the migrant left behind. The “crisis” for Africans, Syrians, or anyone else seeking entry by boat is war, famine, and governments that do not deliver for their people. Or, more generically, stunted horizons of opportunity. These horizons matter so much to people because we are not immortal. Every human gets just one shot to live their dreams. Yet we are born in places with radically different opportunity structures. And then immigration and nationality law condemn about a billion people--against their will--to stay in places where they cannot realize their human potential, much less their dearest dreams.

Most American citizens today would have trouble imagining what it must be like to be born in a place where even the brightest, most talented child will have an infinitesimally small chance of exercising their talents to their limits. Whatever America's or Europe's flaws--and they are many-- children born in those places and a few other developed economies around the world get to play out their potential to a degree that is basically unfathomable in most of the world. Where a person's choice to stay in or leave their country of birth can reasonably be called a choice, rather than forced migration, those who leave by choice do so out of ambition. They want a chance to make something of the one life they have, or, if not for them, then for their offspring. The Mediterranean is the means of getting that shot to make something of themselves and their children, or to secure access to the kinds and quality of basic goods like shelter, housing, food, safety, or electricity, that Europeans and Americans take for granted. For the migrants who wish to move, stopping their movement is the crisis, not the boats. For migrants seeking entry, the crisis was always a lack of available visas and the stunted horizons of possibility in their home countries. Setting foot in Europe was the thing that relieved the crisis from the migrant's point of view.

And what if that form of relief--more migration, more visas--was the “post-crisis”? What if Europe decided to welcome many more immigrants than it was previously willing to, and as a result the demand to migrate met the supply? The boats disappear because the movement happens in airports (or safer commercial boats) with the state's blessing. The concern of course is that admitting more migrants is a “crisis” all its own for the Europeans. The “crisis” of too many immigrants. Fears abound. They won't assimilate. They will end up like the Irish who landed destitute at Boston harbor, their progeny will become ... President ...?

[. . .]

As silly as this hypothetical may seem, I think that it offers a way of seeing into the usually unseen way immigration law's production of “crisis” functions to reinforce the power and necessity of immigration restriction and punitive enforcement--even though it is that restriction itself that is the ultimate cause. As fanciful as the teleporter is, we have technology available to us that does in effect the same thing that the teleporter does--VISAS! More visas do much the same thing that the migrants achieved themselves with the teleporter. Properly done we can spread the impact of migrants, help them blend in, integrate, etc., we can do these things with the money we now spend on deportations and border enforcement. Maybe if we did that immigration wouldn't be such a “crisis.”

Daniel I. Morales, Associate Professor of Law, Dwight Olds Chair, University of Houston Law Center; BA Williams College, J.D. Yale Law School. This short piece is a lightly modified and annotated version of a lecture presented at the Houston Journal of International Law's 2022 Skelton Lecture Series event.