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IMMIGRATION Part II:
A Brief History of U.S. Policy

Hendrik van den Berg
UNL Economics Professor & author of The Economics of Immigration (Springer, 2009)

As the United States once again considers changing its immigration policy, it’s important to note that calls for restricting the entry of immigrants are nothing new in our history. Despite our reputation as a country of immigrants, our government policies have often been anything but ‘immigrant-friendly.’ Before analyzing the ‘new’ proposals to restrict immigration, we can gain some perspective by reviewing the myths and realities of our past immigration policies.

The Ebb & Flow of Past U.S. Immigration

The table details the decade-by-decade inflows of legal immigrants to the U.S. over the past two centuries. The fluctuations in immigration over the past two hundred years were in large part due to shifts in U.S. immigration policies, which, in turn, were driven by economic conditions, the changing volumes of immigration and political developments. Note that the table does not include illegal immigrants, largely because we do not have accurate numbers. By the year 2000, there were an estimated 8.5 million unauthorized immigrants in the U.S.; by 2005, the number had grown to somewhere between 10 and 12 million. This recent growth of unauthorized immigration reflects the clash between restrictions on legal immigration and the strong economic incentives for immigrants to come to the U.S.



U.S. immigration has also varied in terms of the country of origin and the permanence of the immigrants in the U.S. Whereas most immigrants to the U.S. during the 1800s were mostly from the British Isles and Northern Europe, during the very early 20th century most immigrants were from Southern and Eastern Europe. Then, toward the latter part of the 20th century, most immigrants came from developing countries in Latin America and Asia.

Early Immigration Policy

After Independence, U.S. borders were effectively open. In fact, immigration from Europe was encouraged — an understandable policy for a large country with relatively few inhabitants. The U.S. Constitution contained provisions giving the Congress the power to “establish a uniform Rule of Naturalization.” The Constitution also stipulated that immigrants, once they gained citizenship, became eligible to hold all government offices except the Presidency. In a speech on December 2, 1783, not long after the he led the definitive defeat of the British forces in the Battle of Yorktown, George Washington told an audience of Irish immigrants:

The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions, whom we shall welcome to participate in all of our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

At the insistence of the delegates from the Southern states, the Constitution also condoned the forced immigration of slaves from Africa by banning the federal government from interfering with the slave trade for 20 years, until 1808.

First Immigration Legislation: The Intrusion of Politics

In 1790, the U.S. Congress passed legislation that, among other things, set a period of two years for an immigrant to become eligible for citizenship. The 1790 act also established that immigration was open to “free white persons” (a provision that would eventually be used against Asian immigrants later in the 19th century). In 1795, the number of years of residency required before citizenship could be applied for was upped to five years. Then, the “Alien and Sedition” Acts passed during the John Adams Administration restricted the entry of even some “free white persons” — effectively those people that the Federalists thought might vote for Thomas Jefferson. The period required before citizenship could be obtained was also increased to 14 years. In 1802, during the Jefferson Administration, it was changed back to five years, where it has remained through today.

The ‘Know-Nothings’: The ‘Minutemen’ of the 1850s?

Immigration gradually increased during the first half of the 19th century, and the flood of Irish immigrants after the Irish potato famine seems to have triggered the first major organized support for restricting immigration. The anti-immigrant sentiment was closely related to a growing anti-Catholic sentiment. There had, in fact, been anti-Catholic riots in several northeastern cities of the U.S. as early as the 1830s, fueled by the fear that the growth of Catholicism would undermine traditional Protestant society in the United States. In addition to the Irish, increasing numbers of Catholic Germans were also arriving by mid-century.

An exclusive and secret society of white Protestant men called the “Order of the Star-Spangled Banner” arose in the 1850s to protest the perceived threat of Roman Catholicism and Catholic immigrants. Because they would always reply, “I know nothing,” when questioned about their organization, members of the Order were referred to as the “Know-Nothings.” By the mid-1850s, the Know-Nothings had over a million white males as members, which amounted to over one-eighth of all eligible white male voters in the country because only men could vote in the 19th century and — in the Southern states — only white males could vote. The Order formed a political party, the “American Party,” whose candidate, former President Millard Fillmore, captured 20 percent of the vote in 1856. The Civil War, in which many recent immigrants fought, lowered the anti-immigrant fervor, and the Know-Nothings gradually faded into obscurity.

The “Chinese Exclusion Act”: A 19th Century ‘Patriot Act’?

In the 1860s, thousands of Chinese immigrants worked on the transcontinental railroad. By 1880, there were over 100,000 Chinese living in California. Although anti-Chinese sentiments had been strong in California for years, anti-Chinese sentiments spread to the rest of the country when, in 1870, a shoe factory in North Adams, Massachusetts, brought in 75 Chinese workers from California to replace striking workers. Labor organizations were quick to exploit racial biases by depicting Chinese immigrants as a threat to American workers. Congress responded by passing laws restricting Chinese immigration, but the presidents during the 1870s vetoed them because established trade treaties between the U.S. and China prohibited restrictions on Chinese immigration. However, in 1882, after a new trade treaty with China was negotiated, Congress passed a bill entitled “To Execute Certain Treaty Stipulations Relating to Chinese” but popularly known as the “Chinese Exclusion Act of 1882.” This law was blatantly racist, yet it passed Constitutional muster.

Also in 1882, another immigration law placed a tax on immigrants to pay for a new immigration bureaucracy. This second law also established the criterion that immigration authorities could deny entry to “paupers or persons likely to become a public charge.” Beginning in 1892, a special “Commissioner General of Immigration” was appointed by the president to run the immigration bureaucracy with its inspectors, examiners, translators, border guards and administrators. This would eventually evolve into the “Immigration and Naturalization Service” (INS).

Also in 1892, the “Geary Act” denied the right of bail to Chinese in habeas corpus proceedings, and all Chinese immigrants were required to obtain an identification document called a “certificate of residence.” Chinese immigrants often challenged the U.S. government in court, which led government officials to argue before the Supreme Court that “the nation’s gates could be effectively guarded only if they were allowed full authority and discretion over immigration policy without interference from the federal courts.” With a 5-3 vote, the Supreme Court ruled that Congress indeed had the power to monitor and deport resident aliens when “their removal is necessary or expedient for the public interest.” This ruling effectively established that un-naturalized immigrants were at the mercy of Congress and did not enjoy the full rights accorded U.S. citizens under the Constitution.

Tough Laws, Not So Tough Enforcement

The establishment of the immigrant processing center on Ellis Island in 1892 represents the beginning of formal monitoring and control of immigrant inflows. Over 12 million immigrants would pass through Ellis Island before the present procedure of processing immigrants overseas at U.S. embassies and consulates went into effect in 1924. Despite Ellis Island’s reputation, however, the screening was not terribly rigorous. First of all, not everyone was even required to pass through Ellis Island. Ships bringing immigrants would routinely dock at a pier on the Hudson or East River sides of Manhattan Island in New York, and first and second class passengers were immediately passed through customs and granted entry to the U.S., the theory being that if a person could afford to purchase a ‘first’ or ‘second class’ ticket, they were unlikely to become a public charge in America. Most immigrants were ‘third class’ and steerage (deck) passengers, however, and these passengers were ferried to Ellis Island. There they were given a quick physical exam consisting of a quick check of the eyes and the skin, and they were briefly questioned by inspectors in order to ascertain whether they were likely to become a burden on society. Records show that fewer than 2 out of every 100 arrivals were refused entry. Of course, steamship lines were careful to screen their passengers before sailing because U.S. authorities required the shipping lines to return those passengers who were refused entry to their original ports of embarkation.

Ellis Island’s counterpart on the West Coast was “Angel Island” in San Francisco Bay. There the processing of immigrants took much longer because it was designed to prevent unauthorized Chinese immigrants from gaining entry to the U.S. The 1882 Chinese Exclusion Act banned all Asian immigrants except immediate relatives of persons already living in the U.S. Chinese immigrants were often kept in detention on Angel Island for a month or more before being allowed to enter the U.S., as immigration officials attempted to verify the alleged family ties to Chinese-Americans already living in the U.S. Fearing that some would-be immigrants claimed kinships that did not exist, officials subjected both the immigrants — and the supposed American relatives — to extensive, and often abusive, questioning. There was corruption within the administration of Angel Island, however, and well-connected Asian immigrants were processed much more quickly than others. For example, thousands of Japanese ‘mail-order brides’ were quickly admitted into the U.S. under prior arrangements between the brokers and immigration inspectors. There are also many stories of personnel on Angel Island passing information between detainees and on-shore relatives about the questions being asked so that they could coordinate their answers.

The Early 20th Century Shift in Immigration Policy

After 1890, immigration accelerated, and pressure for overall limits on immigration grew. By 1910, annual arrivals exceeded 1 million people, or 1 percent of the U.S. population at that time, and the 1910 Census showed that over 15 percent of the U.S. population was foreign born. The turn of the century period was also characterized by occasional economic panics and recessions. As unemployment rose, many Americans found it convenient to believe that the foreign immigrants were responsible for their economic hardship. Many politicians were only too happy to demonize the non-voting new arrivals in the hope of attracting the votes of citizens. Not surprisingly, the more diverse ethnic backgrounds of immigrants in the early 20th century led opponents of immigration to lament the deteriorating ‘quality’ of new immigrants.

Legislation to place strict limits on all immigration came within a few votes of passing Congress in 1897 and again in 1898, but no major restrictions on immigration were actually imposed. The captains of industry and commerce lobbied hard to push immigration curbs to the back burner of the legislative process. Immigrants themselves had become a decisive political force, and the growing numbers of naturalized, and thus voting, immigrants in the large urban areas became a political force that kept urban politicians solidly pro-immigrant. In cities like New York and Chicago, immigrants made up as much as half the population. The political machines in the large cities looked at arriving immigrant arrivals as future voters whose loyalty could be guaranteed by an openly pro-immigrant stance. Representatives of political machines often made it a point to court new arrivals in order to build political loyalties. Another 17 million immigrants would arrive in the U.S. before restrictive immigration legislation would finally be enacted.

Yet, the momentum toward more restrictions was already apparent. In both 1903 and 1907, bills were introduced in Congress to require literacy tests for immigrants. Similar bills were actually passed in 1913 and 1915. These bills were vetoed by President Wilson. In 1917, Congress again passed the literacy test, and this time it easily mustered the necessary two-thirds majorities in both houses to override Wilson’s veto. It should be noted that the literacy test did not require literacy in English, only in the native language of the immigrant.

The Racist 1924 Immigration Act

After World War I, opposition to open immigration was even more pronounced. The post-war reestablishment of the gold standard led to tight monetary policy and a sharp increase in unemployment in the early 1920s, and the usual cries about immigrants taking Americans’ jobs quickly swung the legislative debate towards restricting immigration. With the election of an isolationist Republican president in 1920, there was no longer a presidential veto awaiting restrictive immigration bills as there had been during the Wilson presidency. Opponents to open immigration also gained strength in both the House and Senate in 1924, and the result was the “Immigration Act of 1924.”

This act mandated that immigration from each foreign country be limited to 2 percent of the total number of descendants of immigrants of that national origin residing in the United States, with an overall limit of 150,000 people per year. Immediate family members and other close relatives were exempt from the overall limits, which still allowed about 300,000 immigrants to enter the U.S. each year during the remainder of the 1920s.

Considerable argument arose, however, about how to calculate national origins. Although Congress ordered a ‘scientific’ study on the ethnic composition of the U.S. population, the House of Representatives went along with its more ‘nativist’ members and agreed to use the 1890 census — the first U.S. census to ask people about their ethnic and national origins. The Senate later concurred. Using the 1890 census, rather than the 1920 census appealed to those people who feared that the large post-1890 immigration from Southern and Eastern Europe was upsetting the ‘traditional’ ethnic makeup of the United States. Critics of the bill sarcastically referred to the 1890 census as the “Anglo-Saxon census.”

Finally, in 1929, a carefully selected ‘panel of experts’ somehow came to the ‘scientific’ conclusion that 43.4 percent of Americans traced their origins back to people who were in the country at the time of the American Revolution and, presumably, of Anglo-Saxon descent. This revision actually reduced the quotas for nearly all immigrants except those applying from the United Kingdom. Effectively, the ‘scientific’ quotas were even more restrictive and biased the original law.

One of the unanticipated consequences of the strict quotas, interestingly enough, was the beginning of unauthorized immigration. As the flow of legal immigrants was restricted, the incentives for people to immigrate appear to have strengthened during the “Roaring Twenties.” Many European economies were suffering severe economic downturns while the U.S. economy was growing. Congress reacted to the rising illegal immigration in a way that has become familiar in the latter half of the 20th century: it allocated more funds for enforcement of the immigration laws. The Bureau of Immigration was expanded, and the United States Border Patrol was established to guard the Mexican and Canadian borders against the unauthorized entry of foreigners.

Immigrants and the Great Depression

In 1930, in reaction to the rising unemployment, President Hoover explicitly instructed consular offices to refuse an immigrant visa to anyone suspected as a likely public charge. This executive order was increasingly used to bar prospective Mexican immigrants in the 1920s and 1930s. American consulates had a high degree of discretionary power in granting immigrant visas — a power derived from earlier court decisions upholding the executive branch’s power over immigration.

This executive power was used very inconsistently during the 1930s when it came to refugees from Nazi Germany, for example. Some consuls granted as many visas as they could to persecuted Jews and other intellectuals; others granted very few. Incredibly, U.S. consuls in Germany granted only half as many immigrant visas as actually allowed under the 1924 quota system. Attempts by some legislators to pass bills allowing more refugees to enter the United States failed, and the Roosevelt Administration, busy with other matters, did not address the issue.

A most shameful example of U.S. insensitivity to Nazi persecution was the fate of one group of 933 Jewish refugees in 1938. The refugees were on the quota list at U.S. consulates in Germany, but, for unknown reasons, the final documents were delayed. The refugees feared for their lives, so they boarded a ship bound for Havana, Cuba. They expected to be able to wait for their documents in the Western Hemisphere, far from Hitler’s police. But Cuba already had over 2,000 refugees waiting in Havana, and they refused entry to the 933 passengers. Thei ship then sailed for Miami, hoping to find sympathetic U.S. authorities. Instead, after docking and making its case, the ship was ordered to leave U.S. waters. A Coast Guard cutter was assigned to follow the ship to make sure no passengers tried to swim ashore. Eventually the ship returned to Europe, where France, Belgium, the Netherlands, and Great Britain each agreed to take one fourth of the passengers. Unfortunately, a few months later, Germany invaded the first three of those countries, and most of these Jewish refugees perished at the hands of the Nazis.

Immigration Policy During World War II

Mexican immigration was strongly discouraged during the Great Depression, but once the U.S. entered World War II, Mexican workers were actively encouraged to immigrate by new U.S. government measures. A special “Bracero Program” authorized temporary work permits for Mexicans working in agriculture and performing jobs formerly held by Americans who had joined the armed forces. The Bracero Program would last until the early 1960s, when organized labor in the U.S. would finally muster enough votes in Congress to kill it.

World War II also motivated the ‘internment’ of some 125,000 Japanese-Americans after Japan attacked Pearl Harbor. U.S. law permits the government to imprison persons 14 years old or older who are citizens of countries that the U.S. is at war with. However, the Japanese-Americans imprisoned during World War II were American citizens, and most were born in the U.S. They were held in ten internment camps, most of which were in desolate areas and provided the most rudimentary living conditions. At the time, this action by the U.S. government was not sanctioned under U.S. law, but a later Supreme Court decision retroactively approved the government’s actions.

After World War II: Dealing with Racism

After World War II, the Republican-controlled House and Senate began work on a new immigration bill that strengthened the existing system of ethnic quotas. It added explicit restrictions on the immigration of suspected subversives. The 1952 “Immigration and Nationality Act” (also known as the “McCarran-Walter Act”) was drafted by Senator McCarran of Nevada, the head of the Senate Judiciary Committee. The act kept most quotas in place, increased border patrols, and mandated new entry restrictions for persons with un-American political philosophies. This latter provision would end up keeping noted intellectuals such as Nobel Prize-winning author Jean-Paul Sartre from ever coming to the United States to give even a single lecture. Ironically, McCarran’s legislation required quite a few compromises with politicians who favored various openings to immigration, and some provisions of the act effectively began the movement toward liberalizing immigration to the U.S. For example, the McCarran-Walter Act eliminated the anti-Asian bias in the quota system, and it also included the unlimited authorization of immigrant visas for spouses and children of Americans and authorized immigrants. This “family reunion” criterion for awarding visas caused an immediate increase in immigration during the 1950s.

A New Immigration Law in 1965

John F. Kennedy’s election in 1960 changed the discourse on immigration. In 1963, Kennedy proposed that the quota system be replaced by a system based on (1) skills and national labor requirements, (2) family reunion, and (3) the first-come, first-served principle. No action had yet been taken by the Congress when Kennedy was assassinated in the fall of 1963. But, after Lyndon Johnson signed the “Civil Rights Act of 1964,” the blatantly racist and discriminatory immigration statutes came under renewed pressure. In 1965, the Johnson Administration and the Democratic leadership in Congress pushed through new legislation to replace the clearly unlawful and discriminatory ethnic quota system.

The “Immigration and Nationality Act Amendments of 1965” abolished the national quota system in favor of a new set of criteria for the granting of permanent resident visas. The 1965 legislation prescribed that 80 percent of the numerical limits were to be allocated to relatives of persons already living in the United States, and the remaining were to be allocated to those with desirable skills and their family members. Immediate family (that is, spouses and children) of U.S. citizens were no longer subject to numerical limits at all.

The new immigration law led to sharp increases in the number of immigrants, as shown in the table on page 3. Also not foreseen was the change in the mix of nationalities of immigrants. Europe had recovered from World War II and, by the 1960s and 1970s, reached standards of living comparable to those in the United States. Thus, the economic incentives for Europeans to immigrate to the United States were no longer as strong as they had been. Immigration from Europe, accordingly, declined sharply relative to immigration from Latin America and Asia. The new law’s emphasis on family ties favored further immigration from those countries that recent immigrants came from, and, therefore, more and more immigrants flowed in from Latin America and Asia. It was not long before commentators — and even some economists — presented evidence of the declining ‘quality’ of immigrants. Harvard’s George Borjas has published several studies showing that current immigrants are mostly low-skilled individuals who will never become as productive as the average United States native. Borjas fears that “the huge skill differentials observed among today’s foreign-born groups become tomorrow’s differences among American-born ethnic groups.”

The Growth of Unauthorized Immigration

Despite permitting a substantial increase in the number of immigrant visas issued, the 1965 immigration reform has clearly not increased the supply of immigrant visas as much as demand for immigrant visas has grown. A major factor in the rise in unauthorized immigration was the expiration of the Bracero Program that had permitted the temporary entry of Mexican workers in agriculture and other manual labor jobs. The end of this program effectively cut off any possibilities for Mexicans without advanced education levels or special skills to come to the U.S. unless they had immediate family in the country. The 1,500-mile border was largely unguarded, however, and because labor market conditions had not changed, many former braceros continued to enter the U.S. to work illegally in the same jobs they held when the program still operated. U.S. employers were willing accomplices, as were American landlords, retailers and many other economic interests that stood to gain from the presence of foreign workers and consumers.

IRCA: An Example of Comprehensive Immigration Reform

In 1979, Congress authorized the creation of the “Select Commission on Immigration and Refugee Policy” (SCIRP), with instructions to report by 1981 on how the U.S. should deal with the growing legal and unauthorized immigration. The final 1981 report concluded that unauthorized immigration was a major problem, and it recommended (1) increased border patrols, (2) forgery-proof identification cards for legal immigrants so that employers could be held responsible for hiring unauthorized workers, and (3) amnesty for unauthorized immigrants who had been in the country for a long time. In 1981, President Reagan established another task force to study immigration, and it came to the same conclusions that SCIRP did. After another five years of further debate, legislation finally emerged: “The Immigration Reform and Control Act of 1986” (IRCA).

IRCA’s combination of amnesty, holding employers responsible for hiring unauthorized immigrants and tougher border controls was a compromise that both sides of the issue (namely those in favor of tougher enforcement and those against harsh punishment of unauthorized immigrants) could accept. IRCA’s one-time amnesty for unauthorized immigrants resulted in about 2.7 million unauthorized aliens already living in the United States gaining legal residence status. However, Congress effectively failed to adequately fund the border and employer enforcement measures. Over 20 years later, measures to require forgery-proof identification documents for immigrants and to enforce employer responsibility had still not been put into effect.

Fundamentally, the required checks by employers to verify their employees’ legal status in the United States conflicted directly with the cherished United States legal principle of ‘innocent until proven guilty,’ and many groups took legal measures to reduce or invalidate the rules. One thing the requirement for employer verification of documentation did do was create a new industry supplying forged copies of the U.S. Social Security cards, driver’s licenses and birth certificates.

In 2000, President Clinton called for new legislation authorizing the legalization of the status of some additional unauthorized aliens living in the United States. Before 9/11, President Bush was reported to be leaning in the same direction. However, since various comprehensive immigration reform proposals were introduced in 2006, the issue of amnesty for some or all of the 10 to 12 million-unauthorized immigrants living in the U.S. has been the center of controversy. IRCA is often pointed to as an example of failed comprehensive immigration legislation.

What Now?

In the next issue of Nebraska Report, I will discuss the options legislators now face, and I will conjecture what future immigration legislation is likely to look like. But, as this brief history of U.S. immigration policy shows, over the past 200 years Congress and various presidents have often dealt rather poorly with the issue of immigration. Nor is future legislation likely to be as enlightened or as successful as we would like to hope for.