One way of telling the story of American culture and politics in the second half of the 20th century is to present it as a revolt against the group of white Anglo-Saxon Protestant males who dominated the country from the time of William Bradford to that of Dwight David Eisenhower. This narrative helps to explain how the federal courts began to implement new constitutional interpretations that furthered secularization, democratization, desegregation, and redistribution of political power. Similar developments followed in Congress and state legislatures, particularly when the Democratic Party, whose base has historically consisted of religious and ethnic groups who sought to displace the formerly hegemonic WASP establishment, was dominant. Most Americans are familiar with the constitutional and legal developments of the late 20th and early 21st century involving criminal procedure, race, religion, and abortion, among other issues; until recently, however, few (outside of Chronicles) understood that a similar cultural revolution was changing the way that the country treats immigration and naturalization.
These matters have suddenly gained attention because at least some of the September 11th hijackers (all foreign nationals) had been issued visas by the U.S. government, and, during the law-enforcement sweep that followed the terrorist attacks, other foreign nationals were incarcerated and detained under criminal procedures less strictly regulated than those mandated for U.S. citizens in the Constitution. This led to a plethora of lawsuits and the revelation of eye-opening practices at the U.S. Immigration and Naturalization Service (INS). As Michelle Malkin wrote, the INS was “a beleaguered immigration bureaucracy with 15,000 employees, a $2 billion budget, and an abysmal history of lax law enforcement,” which had embarrassingly failed to do much to prevent the 19 hijackers from entering the country.
The INS has since been folded into the Department of Homeland Security and renamed the “Bureau of Immigration Services,” but we still have an annual deluge of approximately 1.2 million legal immigrants and several hundred thousand undocumented foreign nationals each year—and the prospects for improvement in the way our immigration bureaucracy operates are not encouraging.
We allow a bewildering variety of categories of aliens to enter the country legally. For instance, 50,000 spaces are set aside each year for a “diversity lottery.” Online applications for the lottery list high-school equivalency or two years of job training as qualifications, and applicants must come from a country that is considered underrepresented in the United States. Those who “win” get a nice letter from the federal government beginning “Congratulations!” and are permitted to bring their immediate family, so that the 50,000 spaces considerably understate the amount of immigration made possible by this program. Each year, an additional 100,000 are permitted to immigrate if they can claim that they are refugees from political oppression abroad. A provision of the Violence Against Women Act (other provisions of which were found by the Supreme Court to go beyond the authority permitted by the Commerce Clause) sets aside some places for applicants claiming to be battered spouses. U.S. immigration law also values immigration by those who possess special technological skills and those willing to invest at least a million dollars in a new enterprise here. Each year, we set aside 140,000 places for those possessing “job skills” we purportedly need. And we make it fairly easy for relatives of those already permitted to live in this country to join them.
Americans finally may be beginning to realize that our immigration policy is chaotic, complex (only the tax laws are said to be worse), and wrongheaded. For several years now, some solons have sponsored immigration-moratorium measures. The latest, introduced in February 2003, is H.R. 946, the “Mass Immigration Reduction Act of 2003,” which, according to its proponents, “would explicitly ‘effect a moratorium’ on most categories of legal immigration and drastically limit others. It would . . . reduce legal immigration numbers from the 1.2 million person flood a year to about 300,000 immigrants per year for 5 years.” Its sponsors also hope to “increase pressure against illegal alien amnesty bills now working their way through Congress.” Unfortunately, several such efforts have recently foundered for lack of support. More alarming, at least some of the illegal-alien amnesty bills enjoy the support not only of a more substantial portion of Congress (often Democrats, who correctly perceive that naturalized and enfranchised aliens are more likely to support their party) but of the Republican administration, which seeks to garner Hispanic votes. Even so, U.S. immigration policy is not what the majority of the American people would favor, if given the opportunity to choose.
Our failure to stem the tide of illegal immigration—particularly from south of the border—and our willingness to grant amnesty to many of these immigrants have brought large numbers of non-English-speaking people to the United States, where they seek to take advantage of the social services available to citizens. Those concerned about this attack on traditional American culture may well wonder: Just what is our law regarding the rights of noncitizens? What are the rights of aliens in America, and to what extent do they have a claim on our social resources or even a right to enter the country?
The U.S. Constitution does not set out detailed principles for the treatment of aliens. The power to make uniform rules for immigration and naturalization is granted to Congress, so the matter is taken out of the hands of state and local governments. In recent judicial decisions, at least some federal courts have read this to mean that the national government can dictate the policies to be followed by state and local governments in providing services even to undocumented foreign nationals. Congress has generally mandated that those who provide social services not discriminate between citizens and noncitizens. Following this logic, a federal judge ruled California’s Proposition 187—which sought to curtail social services to aliens—unconstitutional. It is increasingly unlikely that state and local governments will have much discretion in refusing services to noncitizens or even to illegal immigrants.
In the beginning of the republic, Congress clearly recognized a danger from immigrants hostile to American institutions, and, as early as 1798, the president was given power to detain or expel foreign nationals who posed a danger to the citizenry. This power has been maintained in the executive and was recently invoked to support the detention not only of aliens resident in this country but of Al Qaeda operatives, captured in Afghanistan, at our military base in Guantanamo Bay, Cuba. There is also clear precedent for bringing alien offenders before military tribunals rather than our regular courts, although this practice has predictably been assailed by such organizations as the ACLU.
The Constitution begins “We the people of the United States,” which would seem to exclude noncitizens, since at least some decisions of the federal courts have defined “the people” as the citizens. Citizens comprise those born in this country and those who have been naturalized according to legal procedures, which require continuous residence for a period of years, an application for citizenship, and the demonstration of knowledge regarding the rights and obligations of U.S. citizens. Thus, the legal rights guaranteed by the Constitution—including the freedoms of speech, press, and religion; the freedom from unreasonable searches and seizures; and the rights to counsel, equal protection of the laws, and due process—might be taken not to extend even to aliens legally admitted to the United States, and, a fortiori, not to those aliens who were not legally admitted. This was the view that prevailed among the Founding Fathers, but it is no longer accepted.
The ACLU and other “civil-rights” organizations point to the guarantees of the Bill of Rights and other laws and note that the language of those provisions is that of general prohibitions (e.g., “Congress shall pass no law abridging the freedom of speech”) or that the protections accorded are given to any person and not just to citizens (e.g., the 14th Amendment’s statement that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). Two amendments to the Constitution, the 15th and the 19th, are expressly limited to citizens. The 15th provides that “The right of Citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and the 19th states that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” This language might seem to make clear that the exercise of the franchise can certainly be reserved to citizens, but, according to perhaps the hoariest of legal maxims, expressio unius est exclusio alterius (“to mention one excludes the others”), such language might also be read to say that, where rights are not expressly limited to citizens, they ought to be enjoyed by all. That view dominates not only among such groups as the ACLU but within the legal academy and the federal courts. Georgetown Law Professor David Cole recently wrote in the Stanford Law Review that “The right to vote and the right to run for federal elective office are restricted to citizens, but all of the other rights [guaranteed by the Constitution] are written without such limitation.”
Though its name seems to suggest that it ought only to be concerned with the civil liberties of Americans, the ACLU now invokes the language of “human rights,” which, in some instances, goes well beyond what the Constitution might provide. No matter what textual games they and others might seek to play with the Constitution, however, the provisions of Article I, Section 8, granting Congress the power to “To establish an uniform Rule of Naturalization,” and of Article I, Section 9, implicitly granting Congress the power to prohibit “The Migration or Importation” of persons into the country, convey the unmistakable impression that aliens may be treated differently. The Declaration of Independence, following Locke, states that “all men” are endowed with certain unalienable rights, including those to life, liberty, and the pursuit of happiness. We have never actually accorded constitutional status to the Declaration, but its ideas have, at least, rhetorical force, especially when they are added to other statements of human rights. Reflecting the conventional wisdom of the legal academy, Professor Cole notes that
the human rights movement of the last 50 years reflects a[n] . . . understanding that there are certain basic rights to which all persons are entitled, simply by virtue of being persons. . . . The rights of political freedom, due process, and equal protection, in other words, are part of the minimal set of rights that the world has come to demand of any free society.
For Professor Cole, the ACLU, and others like them, there is a free-floating standard of conduct (“that the world has come to demand”) that ought to bar our government from treating aliens, for most purposes, any differently from citizens.
From this perspective, the U.S. government has no right to discriminate against those wishing to enter this country who hold political, religious, or cultural views antagonistic to those that prevail here. Thus, it is not surprising that, in 1990, Congress was persuaded to repeal the provisions of immigration law that allowed the deportation of aliens who held political views incompatible with our constitutional order. Before 1990, it was permissible to deport or refuse entry to those who were “anarchists,” who advocated “opposition to all organized government,” who were “members of the communist party or any other totalitarian party,” or who advocated “the overthrow by force, violence, or other unconstitutional means of the Government of the United States or the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government,” or who advocated “the unlawful damage, injury, or destruction of property.” It is still possible for the U.S. government to deport aliens suspected of affiliation with terrorist organizations or convicted of felonies or of helping others to evade deportation or to disobey the immigration laws (among several other grounds), but it is not at all clear that the federal government has the resources or the will to do so. Indeed, in January 2002, the Washington Post reported that 300,000 foreign nationals remain in this country after having been ordered deported.
How is it that we have arrived at such permissive immigration and such generally lax enforcement of immigration and deportation laws? Some see this as the result of a desire for cheap labor for American factories, service industries, and domestic services, which dovetails nicely with immigrant desires to escape a lack of economic opportunities abroad. The argument for such immigration is that it benefits the U.S. economy, and the same argument justifies accepting immigrants who can invest large sums of capital in American industry or who possess special skills American industry needs. Setting aside the question of whether economics ought to drive immigration policy, those seeking to restrict immigration have argued that the increased cost of social services, particularly welfare and medical care (which the federal government mandates must be provided to resident alien and citizen alike), far offsets any economic gain from increased immigration.
In any event, the costs to American culture and politics of virtually unrestricted immigration and the legal inability to distinguish between citizen and alien may be greater than any economic benefit increased immigration could ever provide. Those who advocate open borders and the provision of social services to aliens believe in a concept of human rights that is antithetical to the traditional understanding of national sovereignty in America and is, perhaps, even antithetical to the rule of law itself. The problem with abstract assertions of “the rights of man,” as Edmund Burke warned, is that they lead to the overthrow of established institutions, to the weakening of traditional authority, to the seizing of property, and, ultimately, to anarchy and tyranny. The human-rights arguments that advocates for open borders and for equal treatment of aliens often invoke are the same arguments Burke attacked. To fail to distinguish between the rights of citizens and aliens, to fail to control immigration, and to fail to carry out deportations may put at risk not only American sovereignty but, eventually, property rights and Americans’ resistance to redistribution. For those truly hostile to the dominant American values and culture of the 18th, 19th, and early 20th centuries, this may not be a concern; for those remaining defenders of those values and that culture, however, there is reason for alarm, if not outrage.