The Return of Border Discrimination

President Lyndon Johnson signing the 1965 Immigration and Nationality Act at Ellis Island (LBJ Library)

“No ban, no wall” was the chant echoing at airports within hours of the executive order’s signing, and it has remained a rallying cry in the weeks since. Protesters were right to connect the twin cruelties of the “Muslim ban” and the long promised border wall. Both draw lines of exclusion and feed off xenophobic nationalism. But the two plans also represent very different ideas with different consequences. The wall is a boondoggle to restrict illegal immigration. It represents failed thinking in a familiar debate, and it will distract from real problems more than transforming them. The ban on the other hand targets legal immigration. It revives an idea that hasn’t been on the table for more than half a century: nationality discrimination in immigration. Unlike the wall, this idea could portend a deep reversal in the role immigration plays in America.

The January 27 travel ban poured “old poison into new bottles,” to borrow a phrase Justice David Souter used in 2000 to describe a Louisiana redistricting plan that diluted African-American voting power. He was dissenting against a ruling that would roll back part of the Voting Rights Act. As it happens, the poisons of vote suppression and the Muslim ban share crucial links. Congress banned immigration discrimination in 1965, months after it enacted the Voting Rights Act. And just as the conservative movement has recently won major victories against the achievements of the civil rights era, the Muslim ban may signal a turn back toward immigration discrimination.

Like many recent outrages, border discrimination was as old as America, until we tried to get rid of it in the 1960s. The country’s first naturalization statute, enacted in 1790, restricted citizenship to whites. Others were allowed in over time, though always with entry categorically decided by race and nationality. This changed with 1965’s Hart-Celler Act, which built the American immigration system we know today. That system has deep flaws, as seen across America’s vast archipelago of detention centers and backlogged immigration courts. But the act also featured two innovations that changed the United States for the better.

The first was to prioritize immigration through family structures. The law made family unification the chief criteria of visa policy: once one migrant wins admission, it becomes much easier for relatives to follow. For decades, newcomers have been welcomed by family members who can explain their strange new home. Immigrants help each other navigate schools, start businesses, and build places of worship. In this way they assimilate together, forming a solidarity economy of sorts. This dynamic helps explain the richness of our immigrant communities.

My parents came to the United States in the 1980s. They tell a story from shortly after they settled in Oregon, where I was born. The husband of my mother’s cousin in New York had died of a heart attack. My mother grew up in Bangladesh with dozens of first cousins on the same street, but just a scattered few were in the United States. When news came of the death, we flew from Portland and took a cab straight from JFK to Long Island. At three months old, it was my first time in New York. The cab ride cost $140 with tip, my mother told me decades later.

I first heard this story after I started college in Manhattan. By then a thrifty New Yorker, my immediate reaction was: wait, why didn’t you take the Long Island Railroad? Even today my parents avoid luxuries, so it was unthinkable that they paid for an expensive cab just a few months after my father started his first real job. My mother explained that they took a cab because they would have had no idea how to take the train, since no one was there to tell them how. Yet they figured out so much else in America.

Pluck explains some immigrant success, but so does the help of those who came before. My parents were each the first in their families to immigrate here. Then, over the years, my mother’s siblings sponsored one another for visas and tugged each other over. First came my mother’s sister, who moved in with us when I was six. Her husband didn’t have a visa yet. I once eavesdropped on their conversation from another phone in the house. She told him he needed to keep working hard, his chance would come. It was the first time I heard grownups cry. But my aunt was right. Her husband eventually came, as did both her other siblings, their spouses, and my grandmother. It all began with my mother’s visa nearly forty years ago.

Hart-Celler’s family unification model ensures support networks and creates civic institutions. This “chain migration” helps explain why New Jersey’s Indian grocery stores redundantly sit in the same strip malls and why Cambodians own so many of Los Angeles’s donut shops. Before learning to copy the natives, immigrants copy each other.

Of course, all of this imitation has downsides too. When parents primarily measure themselves against fellow immigrants, a child’s deviance from the community’s insular norms can be a source of harrowing shame. If your main point of reference is other immigrants, there will be a limit to how much you assimilate. But this same insularity also helps create the conditions for pluralism. Newcomers fit in while organizing around their origins and preserving their culture. Without family-based immigration, America might not have featured the rich multiculturalism so many of us prize today.

Hart-Celler’s other revolution was less subtle: an end to race and nationality quotas. Migrants from every country now had an equal shot at admission. Today it might seem unacceptable to bar entry solely based on race, but this was the status quo just a half century ago. For the same reason, forms of discrimination that violate the immigration statute might not violate the Constitution. When President Johnson signed Hart-Celler into law, he declared that immigration discrimination defied a “basic principle of American democracy” and was “un-American in the highest sense.” Like many of the other transformations of the civil rights era, this principle that President Johnson called fundamental was also unprecedented.

Historians debate whether Congress expected to make America so much less white. There’s evidence that at least some senators hoped the bill would increase white immigration. Even family unification—Hart-Celler’s engine of pluralism—was meant to preserve the country’s existing ethnic profile. The first version of the bill prioritized visas for “especially advantageous” job skills instead, but this was replaced to win support from nativists. Ted Kennedy, who chaired the Senate’s immigration subcommittee, promised that the bill would “not upset the ethnic mix of our society.” His brother Robert, then Attorney General, told senators that 5,000 immigrants might come from Asia the first year, “after which immigration from that source would virtually disappear.” They were wrong, of course, failing to predict globalization’s migrant flows.

Though Hart-Celler’s supporters might not have realized how much they would change the makeup of the country, the bill cannot be separated from the great upheaval against racial discrimination and white supremacy that surrounded it. Hart-Celler was passed just two months after the Voting Rights Act and a year after the Civil Rights Act. A recent analysis by legal scholars Gabriel J. Chin and Douglas M. Spencer shows “striking patterns of overlapping support and opposition” for all three bills. “In every case,” they note, “nearly identical coalitions of civil rights advocates supported the bills while the same group of racially intolerant legislators opposed them.” The bill’s first namesake, Michigan Senator Philip Hart, was “indispensable” to recruiting support for the Voting Rights Act, according to Clarence Mitchell, the NAACP’s chief lobbyist in that period. Most of Hart-Celler’s no votes, like those against the civil rights laws, came from the South.

To be sure, the immigration bill’s aims shouldn’t be conflated with the civil rights movement’s. Diversifying the country was neither demanded nor intended as redress for the crimes of segregation and broad racial oppression. But a law like Hart-Celler—reflecting a principle that seemed fundamental but was in fact unprecedented—might not have been possible in another context. And even if hope for multiculturalism didn’t motivate the law, the principle of antidiscrimination that inspired the landmark civil rights statutes of the period did. Antidiscrimination then led to multiculturalism.

Few laws changed the face of America as profoundly as Hart-Celler. Whites made up about 85 percent of the population in 1965, with most of the remainder African American. Now the Census Bureau predicts nonwhites will be a majority by 2044 if current trends prevail. But the question is: will those trends prevail? Will the country keep welcoming a million new legal immigrants each year, or does Republican defiance of Hart-Celler’s principles hint at a new revolution in America’s immigration scheme?

Hart-Celler’s origins in the civil rights era means that America’s immigrants owe our lives here to the fight for black liberation. We wouldn’t be here if it weren’t for the civil rights movement. Fifty years later, the election shows how the fate of black Americans may still be intertwined with the fate of the country’s immigrants, if in new ways. Just as it’s difficult to separate Hart-Celler from the era’s other victories against white supremacy, the Trump administration’s defiance of that law’s principles is in step with the conservative movement’s decades-long war to roll back the gains of the civil rights era.

That movement has scored crucial wins in recent years. “Our country has changed,” Chief Justice John Roberts wrote in the 2013 ruling that declared a critical provision of the Voting Rights Act unconstitutional. Voting discrimination was bad in the past, Roberts explained, but no longer is now, and so the statute had to be gutted. His opinion required Congress to “ensure that the legislation it passes to remedy that problem speaks to current conditions.” Justice Ruth Bader Ginsburg mocked this idea as “throwing away your umbrella in a rainstorm because you are not getting wet.” The flood of voter suppression that followed—some within hours of the ruling, much of it in places where minority turnout shrank in 2016—seemed to prove her point.

When a court reads a statute in a way Congress doesn’t like, legislators can just rewrite those words. But once something is declared unconstitutional, new language based on the same logic is off the table. This is one reason the principle against immigration discrimination is fragile. Statutory, not constitutional, this principle can be repealed. If Congress considers that option, the attempt to revive border discrimination may be the latest test of the civil rights era’s legacy. Short of that, there are other ways Republicans might try to slash legal immigration, as some in Trump’s entourage have long called for. To paraphrase the exchange between Roberts and Ginsburg, did Hart-Celler change the country so much that Congress must reorient immigration toward today’s needs? If so, what problems would new immigration laws aim to confront?

Here again is why the debates over Hart-Celler’s history matter. Was the law a product of the era’s devotion to antidiscrimination? Or was it an effort to increase immigration from underrepresented parts of Europe, while creating new ways to punish unlawful immigrants from elsewhere? Was it a job creator, helping transition the postwar economic order to a neoliberal regime of flexible labor? Maybe it was an effort to managerialize that question, via expert agencies that would study labor markets to decide who to admit when. Or maybe the bill was just Cold War propaganda, trumpeting the American dream to the nonaligned world’s migrants?

Like all legislation, Hart-Celler was in some part all of those things. Every statute reflects the combined will of each legislator who voted for it, as well perhaps as the purposes that turned away those who voted no. And if Congress tries to reshape the country’s statutory walls today, it won’t be for any one reason alone. At bottom, though, the question is how America should look. The answer will dictate the world’s people flows. America entered this century as the world’s immigration hegemon. No other country invites foreigners on the same scale. Will that continue? Congress’s choice in 1965 to make the country so multicultural was partly the inadvertent consequence of antiracism. The fight over whether to make America white again may be more overt.


Shakeer Rahman will be a civil rights lawyer at the Bronx Defenders starting this fall.



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