Intersection of RACE & NATIVISM in immigration laws

Immig laws have special status – insulated from judicial review

Therefore, congress or the pres can enact almost any immig proposals based on immig status or citizenship regardless of its racial impact

· racism can be easily masked by any law rooted in citizenship, sovereignty, or the ‘national interest’.

Nativism & Law

1920 – CA alien land law [ext of 1913 law] – ballot initiative targeting Japanese immigrants overwhelmingly passed

U.S. S. Ct. struck this down in 1948 Ozawa v. CA – unconst. Bcs overly racist – media racism

1994 – Prop 187 – media images $ drain, services to undoc. – passed overwhelmingly

Modern nativism – brimelow’s alien nation draws from historical nativism agst Chinese in CA. – ‘racial imbalance caused by immig.; difficulty of assimilating immigrants; so, immig should be restricted. ‘White ethnic core of US’.

Law incorporates nativism in 2 ways:

1. exclusion – 1882 Chin Excl Act; Asiatic Barred Zone of 1917 [expanded CEA to bar people from the larger triangular area surrounding Asia]; Immig Act of 1924 – quota system.

2. subordination – of immigs already living in US

ex. Bars to naturalization, alien land laws, English only laws, citz-based restrics on recv’g govtl services [prop 187]

Immig laws immune from judicial review:

Doctrine developed from S. Ct’s upholding of Chinese Exclusion laws of 1880’s.

· JA internment cases – national security interests placed over civil rights – ok to subordinate individuals, incl. US citizens, on the basis of race.

· But use of immig policies to place national sovereignty interests above civil rts can subordinate people even more easily

pp. 86

Racial Sovereignty & the Plenary powers doctrine

Fed power over immig = Close to Absolute power

S.Ct. deferred power to congress and the pres. – bcs it involves national sovereignty as an overriding govtl interest.

Roots from anti-asian immig laws of 1880’s

· Fed Constitution – no mention of immigration powers

· Naturalization clause – a congressional enumerated power – congress shall have the power to est. a uniform Rule of Naturalization.

· Chae Chan Ping [Chinese exlusion case] v. US – S. Ct. upheld 1888 law excluding Chinese immigs returning to us from abroad.

· Indy nations need power over own territory.

Sovereign powers of govt were to:

Declare war

Make treaties

Repel invasion

Regulate foreign commerce

Admit the subjects of other nations to citizenship

The power to regulate immigration [similar to the power to repel invaders during war] – racial exlusion power was implicit within powers of sovereignty.