2013]

The Transformation of American Immigration Law

79

WHOM S HALL W E W ELCOME ? T HE T RANSFORMATION OF AMERICAN I MMIGRATION L AW

Duc Tran*
Immigration law is one of the largest and most complicated bodies of U.S. legislation. Despite extensive academic literature on immigration policy, there have been very few comprehensive works on the history of American immigration law. This paper traces back the origin of U.S. immigration policy and reveals reasons behind major legal changes, which include several overlooked events. It answers the question of what elements of the past did, do, and would challenge Congress in its quest for the best way to solve immigration problems.

n September 2010, Global Horizon Manpower, a Los Angeles Company, was accused of forcing four hundred illegal immigrants from Thailand to work like slaves on farms in Hawaii and Washington. The workers were set up in shoddy housing and threatened with arrest or deportation if they escaped.1 This case has raised so much concern about current American immigration law that President Barrack Obama is preparing for an immigration reform.2 In fact, immigration law is one of the largest and most complicated bodies of the U.S. legislation due to the overwhelming number of immigrants from all over the world.3 Since the founding of the nation, there has been an intimate connection between people and events beyond the U.S. border and American development. Throughout American history, immigration policies tend to respond to crises caused by floods of people to the United States. They are also linked to foreign policy

Undergraduate at Brandeis University, Class of 2013. Forced Labor, Letter to the Editor, N.Y. TIMES, Sep. 8, 2010. Id. EDWARD P. HUTCHINSON, Preface to LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, xiii (1981).
1 2 3

80

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

with other nations.4 Since the United States is facing serious socioeconomic problems, research on American immigration law constitutes the base for American citizens to rethink their previous treatment of immigrants, to realize what has influenced policies, and to decide on what they should do in the future. This article traces the origins of U.S. immigration policy and reveals reasons behind major legal changes in the past. It answers the question of what did, do, and would challenge Congress in its quest for the best solution to immigration problems.

I. HISTORY OF AMERICAN IMMIGRATION POLICY A. The Colonial Era

The history of American immigration policy does not begin with the first federal legislation but with the founding of the first permanent European settlements in North America in the early seventeenth century. The first settlers formulated measures and policies to address problems of immigration caused by those who followed them to the American colonies. Those policies were subject to approval by the English Crown or the Proprietors.5 In fact, at the beginning of colonization, newcomers brought a sense of greater strength and security to the community. Therefore, most colonies adopted policies to encourage immigration, including land grants, religious toleration, tax exemption, travel grants, and even easy terms of naturalization. The encouragement policy was not only directed at migrants from Europe, but also at settlers from other colonies.6 After the need for reinforcements became less urgent, the older settlers began to look with mixed feelings at the later arrivals and to seek means to ward off the undesirable ones. Exclusion policies became much more common, especially excluding people because of their religion. Catholics and Quakers were excluded and persecuted in some of the colonies like Massachusetts and
Introduction to THE GATEWAY : U.S. IMMIGRATION ISSUES AND POLICIES 1 (Barry R. Chiswick ed., American Enterprise Institute for Public Policy Research, 1982). 5 HUTCHINSON, supra note 4, at 388-89. 6 HUTCHINSON, supra note 4, at 389.
4

2013]

The Transformation of American Immigration Law

81

Maryland due to religious intolerance and a desire for homogeneity.7 The colonies also tried to exclude the poor and criminals to prevent public charges and to protect the community. By reporting all arrivals and taxing immigrants, the colonies controlled who entered and restrained the number of newcomers. For example, a 1740 Delaware act, called An Act Imposing a Duty on Persons Convicted of Heinous Crimes and to Prevent Poor and Impotent Persons Being Imported, provided that unwanted immigrants would be returned to their origins.8 In general, immigration brought both benefits and difficulties to the American colonies. Thus, the colonies were forced to devise a system of control or regulation that would maintain the benefits and reduce the difficulties. Because of the lack of precedents for guidance, they had to experiment with various measures and policies, leaving the new country with an accumulation of experience regarding immigration. However, immigration laws were generally lax by the founding of the States. Following the Revolutionary War (1775-1783), the colonialists established the United States of America, ending the colonial era with the Declaration of Independence in 1776. Then, states replaced former colonies and took over the responsibilities for dealing with immigration. For almost a century, local jurisdictions rather than the federal government regulated immigration to the United States.9 Although Congress had authority over immigration as stated in the Constitution, it did not exercise its authority, except for the brief episode of the Alien and Sedition Acts in 1798, encouraging the states to deal with immigration instead.10 The Founding Fathers treated immigrants generously. For example, George Washingtons 1790 letter to the
supra note 4, at 390. HUTCHINSON, supra note 4, at 390-95. AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS 6 (2004). See HUTCHINSON, supra note 4, at 396. The only direct reference in the Constitution to the control of immigration is in Art. I, 9, cls. 1: The immigration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand and eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. Although this was mostly about the slave trade, it was also interpreted to give control over immigration to the federal government in and after 1808. But Congress did not exercise its authority due to its uncertain power over immigration.
9 MARK DOW, 10 7 HUTCHINSON, 8

82

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

Jewish synagogue in Rhode Island implies that all people have the right to come to America if they can become good citizens.11 Furthermore, the local governments were not very strict about immigration. Most immigrants arrived at major ports and the port commissioners were those who made the decisions about how to handle them. The commissioners decided who to admit and who to reject.12 In fact, in most cases, immigrants only needed to pass a medical examination to enter America. Despite the fear of revolutionary aliens such as Irish and French radicals, deportation was rare, thus, immigration to the United States during that time was not difficult.13 However, there were still some limitations on immigration because the states followed the pattern of the colonial legislation. They were active in passing legislation to protect themselves from the financial burden of public charges and the danger of criminals.14 For instance, a Massachusetts act of 1837 provided that any alien passengers found to be lunatic, idiot, maimed, aged or infirm persons incompetent in the opinion of the officer so examining were denied permission to land.15 The states, encouraged by Congress, also adopted laws prohibiting the immigration of criminals from foreign countries into the United States.16 In fact, most of those laws were meant to respond to an enormous surge in immigration from Ireland and Germany in the 1840s. Nearly all of the German and Irish immigrants were destitute when they arrived in America, and soon some became public charges or took on the career of criminals. In addition, most of the Irish and half of the Germans were Catholics, which provoked a nativist backlash among Protestant Americansthe

11 Washington to Hebrew Congregation at New Port, Rhode Island, August, 1790, in The Papers of George Washington, Presidential Series 6, 284-86 (ed. Mark Mastromarino, 1996). In the letter, Washington states, For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. 12 DOW, supra note 10, at 6. 13 DOW, supra note 10, at 6. 14 HUTCHINSON, supra note 4, at 396-403. 15 HUTCHINSON, supra note 4, at 399-400. 16 HUTCHINSON, supra note 4, at 400.

2013]

The Transformation of American Immigration Law

83

first anti-immigrant movement in America.17 In short, the state policies on immigration mainly followed the pattern of the colonial measures with little change. The legislators were most concerned with the immigration of poor persons due to the burden of poor relief. Therefore, the admission of immigrants was based primarily on financial safeguards.18 These requirements did not end with the ending of state controls over immigration. They became a pattern of rigorous control over immigration as a whole, influencing American immigration policy for centuries.19

B. Changes in the Nineteenth Century

In the last half of the nineteenth century, the United States of America underwent many changes, and so did American immigration law. The United States became a major industrial and imperial power due to the increase in population, the revolution in transportation and communication, and its overseas expansion in Southeast Asia and the Caribbean.20 A consequence of these changes was that the country was wide open for immigration. Labor demand made importation of foreign workers a national issue.21 Therefore, the states began to turn to the federal government for funding and assistance.22 However, with the new influx of immigrants, the states themselves could still not solve immigration problems, which became more and more serious. In the 1870s, the growing importation of Chinese prostitutes and European criminals gained much attention from American citizens and created an immediate pressure on the federal government.23 Thus, in 1875 the federal government established its first direct regulation of immigration with the Immigration Act of 1875. 24 The act made the importation of prostitutes, pimps, and anarchists punishable with fine and imprisonment, but did not provide entry
17 JOHN MACK FARAGHER ET AL., OUT OF MANY: A HISTORY OF THE AMERICAN PEOPLE, 1:214 (5th ed. 2008). 18 HUTCHINSON, supra note 4, at 403-4. 19 HUTCHINSON, supra note 4, at 404. 20 LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 253 (3rd ed. 2005). 21 Id. at 255. 22 DOW, supra note 10, at 6. 23 HUTCHINSON, supra note 4, at 66. 24 HUTCHINSON, supra note 4, at 66.

84

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

exclusion.25 It did, however, successfully prevent Chinese women from immigration, lowering the number of Chinese families and Chinese children born in America. It also created the first policing of immigrants around sexuality.26 Although the 1875 act did not end the Chinese problem as it was termed in America, it began an extension of federal authority, which was developed much further soon afterwards.27 In reality, there had been no effective restriction of free immigration for nearly one hundred years. That is why a large number of Asian laborers, most coming from China, were able to migrate to the West Coast and work in industries such as mining and railroad.28 The Chinese workers were hired over white American workers because they were willing to work at lower wages. Yet, economic fears and the anti-Asian racism among Americans gradually made the Chinese unwelcome.29 These factors eventually led to the Chinese Exclusion Act of 1882 that did not reject all Chinese but prohibited the entry of those who had not previously been in the United States. Diplomatic officers, businessmen, and their families were exempted from the ban.30 In administrative regulations, Chinese businessmen were referred to as treaty merchants, reflecting the fact that both the United States and China had long guaranteed the rights of merchants through treaty. Despite the Immigration Act of 1875, The Chinese Exclusion Act was the first real restriction on free immigration because for the first time, federal law banned entry of an ethnic working group on the premise that it endangered the state and society.31 After the Spanish-American War of 1898, waves of immigrants from various nations and territories flowed into the United States. Hawaii was annexed to the U.S. territory and citizens of Hawaii
note 4, at 131. note 4, at 131. note 4, at 66. ROGER DANIELS & OTIS L. GRAHAM, DEBATING AMERICAN IMMIGRATION, 1882PRESENT 6 (James T. Patterson ed., 2001). 29 Id. at 6. 30 Chinese Exclusion Act of 1882, U.S. Statutes at Large 22 (1882): 58. 31 DANIELS AND GRAHAM, supra note 29, at 8.
25 HUTCHINSON, supra 26 HUTCHINSON, supra 27 HUTCHINSON, supra 28

2013]

The Transformation of American Immigration Law

85

immediately became American citizens. Thus, Japanese immigration by way of Hawaii threatened white Americans along the Pacific Coast, as had Chinese immigration.32 Since Japan was not a weak country like China but a rising power, Washington and Tokyo agreed that if Washington did not enact legislation barring Japanese immigrants, Tokyo would stop issuing passports valid for passage to the United States or Hawaii for male laborers. This was meant to halt immigration and save face for Japan.33 However, in the first decades of the twentieth century, the Japanese population in the United States increased dramatically. In addition, other Asians such as Koreans and Filipinos also began to immigrate to the United States.34 As a contrast to yellow immigrants from Asia, white immigrants, particularly Western Europeans, entered America virtually without restriction. This is an example of the influence of the doctrine of white supremacy on American immigration policy.35 In 1917, immigration climbed. In an attempt to limit this perceived flood, Congress passed the Immigration Act requiring a literacy test for all immigrants over the age of sixteen. This was the first time the selection of immigrants was based on literacy.36

C. Immigration Post-World War I

During World War I (1914-1918), immigration dropped rapidly. Yet it rose dramatically in the postwar years, causing many immigration problems such as a high unemployment rate and the increase of public charges. The Bolshevik Revolution of 1917 also made Americans fear an invasion of dangerous communists from Eastern Europe.37 The literacy test was not effective in checking the influx of immigrants because it only required a person to read a paragraph in any language or dialect. Thus, in 1921, Congress created the quota system based on national origins,

32 DANIELS AND 33 DANIELS AND 34 DANIELS AND 35 DANIELS AND 36 DANIELS AND 37

GRAHAM, supra note 29, at 8. GRAHAM, supra note 29, at 9. GRAHAM, supra note 29, at 10. GRAHAM, supra note 29, at 15-16. GRAHAM, supra note 29, at 14-15. DANIELS AND GRAHAM, supra note 29, at 17-18.

86

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

judging an immigrant based on his nationality.38 High quotas were set for Eastern and Southern European nations, while those in the Western Hemisphere were not part of the system. The 1921 act did not regulate immigrants from countries such as China and Japan because there already were treaties and agreements with those nations relating solely to immigration.39, 40 Three years later, the Immigration Act of 1924 drastically changed the quotas, creating a formula that limited the annual quota of a nationality to two percent of the number of foreign-born residents of such nationality in the United States. The foreign-born population was determined by the U.S. 1890 census.41 Although the act was meant to maintain racial homogeneity in the United States, only the population of direct European origin was considered in the computation. The descendants of Africans, Native Americans, and Asians were simply ignored.42 Thus, the act was a racist one. In short, the Immigration Act of 1924 significantly decreased immigration to the United States. The quota system continued, and after 1924, restriction on immigration became much more severe than before.43 The Great Depression in the 1930s made the United States less attractive to immigrants. More people left the United States than came at that time. Furthermore, due to a high unemployment rate, immigrants were not favored by the Hoover administration.44 This resulted in greater restriction on immigration. President Franklin D. Roosevelt almost kept this immigration policy even though the New Deal treated immigrants better. In fact, the Roosevelt administration abandoned the repatriation policy, decreased deportations, and provided reliefs for immigrants.45 However, it failed to aid a large number of refugeesvictims of Nazism that
38 HUTCHINSON, 39

29, at 24. David M. Reimers, Recent Immigration Policy: An Analysis, in THE GATEWAY: U.S. IMMIGRATION ISSUES AND POLICIES, 15 (Barry R. Chiswick ed., American Enterprise Institute for Public Policy Research, 1982). 45 DANIELS AND GRAHAM, supra note 29, at 26.

40 DANIELS AND GRAHAM, supra note 41 HUTCHINSON, supra note 4, at 484. 42 HUTCHINSON, supra note 4, at 485. 43 DANIELS AND GRAHAM, supra note 44

supra note 4, at 483. HUTCHINSON, supra note 4, at 483.

29, at 21.

2013]

The Transformation of American Immigration Law

87

escaped the Holocaust during World War II. The quota system and the fear of public charges and German agents made the U.S. Department of State refuse to grant visas to many Jewish immigrants.46 However, there was a humanitarian leniency of immigration laws post-wartime, perhaps due to guilt for turning away the victims of Nazism during the war. Indeed, in 1944, thousands of Jewish immigrants without valid visas were admitted to the United States by the executive order of President Roosevelt.47 Besides the Holocaust, World War II also caused a manpower shortage in the United States, which raised demand for temporary workers from Mexico and the Caribbean. Those laborers worked either in factories or on farms. Wartime demands led to the Bracero agreements between the United States and Mexico as well as Caribbean nations in 1942.48 In addition, the Chinese Exclusion Acts were repealed in 1943 due to the pro-China foreign policy, the decreasing competition in job markets from Chinese immigrants, and the Americanization of the Chinese Americans.49 However, there was increasing restriction on Japanese immigration after the Japanese attacked Pearl Harbor in 1941.50 Generally, World War II marked a positive turning point in American immigration policy. Due to the war, Americans had more contact with the outside world, and from this regard, they became less racist. Furthermore, international politics played a far more important role in shaping American immigration policy after World War II.51

D. Immigration Post-World War II

In the postwar years, the devastation of Europe, the spread of Communism, and the Cold War resulted in a growing number of refugees from Soviet occupied lands. Because the Holocaust made Americans more sympathetic toward immigrants- especially
46 Reimers, supra note 45, at 16. 47 DANIELS AND GRAHAM, supra 48 Reimers, supra note 45, at 16. 49 Reimers, supra note 45, at 17. 50 Reimers, supra note 45, at 17. 51

note 29, at 31.

DANIELS AND GRAHAM, supra note 29, at 33-34.

88

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

refugees- the quota system became inadequate.52 Thus, in 1948, Congress passed the Displaced Persons Act, the first act establishing refugee policy as opposed to immigration policy. Half a million displaced people, most of them refugees, were admitted to the United States under the statute and its 1950 amendment.53 However, the statutes expired in 1952. Immediately, the Immigration Act of 1952, often called the McCarran-Walter Act, was passed in the spirit of anti-communism during the Cold War.54 The act was fundamentally a restatement of the 1924 Act because it reestablished the national origins quotas. The act was meant to cut down and even eliminate immigration to the United States from Southern and Eastern Europe.55 President Harry S. Truman strongly protested such a discriminatory act and called for a special commission to reexamine the whole issue of immigration. The purpose of the commissions report was to study and evaluate the immigration and naturalization policies of the United States.56 According to the report, America historically has been the haven for the oppressed of other lands and, American national unity has been achieved without national uniformity.57 The report was a call for humanitarian immigration and refugee policies. Indeed, it gained more attention for immigration and weakened the McCarran-Walter Act.58 In 1953, responding to the issue of immigration, Congress passed the Refugee Relief Act that authorized over two hundred thousand non-quota immigrants. The act, for the first time, included Asians as potential beneficiaries. Additionally, thousands of spaces were allocated for Far Eastern refugees.59 In 1956, refugees from the Middle East were included.60 The same year
GRAHAM, supra note 29, at 35. Reimers, supra note 45, at 24. The Displaced Persons Commission stated, For the first time in this century, restrictive and exclusionary legislation was relaxed in order to facilitate the admission of refugees into this country. 54 DANIELS AND GRAHAM, supra note 29, at 35. 55 DANIELS AND GRAHAM, supra note 29, at 36. 56 PRESIDENTS COMMISSION ON IMMIGRATION AND NATURALIZATION, WHOM SHALL WE WELCOME (1953). 57 Id. 58 Reimers, supra note 45, at 30. 59 DANIELS AND GRAHAM, supra note 29, at 38. 60 DANIELS AND GRAHAM, supra note 29, at 38.
52 DANIELS AND 53

2013]

The Transformation of American Immigration Law

89

witnessed the Hungarian Revolution that caused a mass emigration of freedom fighters. Although sympathy for those freedom fighters was limited in the United States, many of them were eventually admitted under the request of President Eisenhower.61 Similarly, the collapse of the Batista regime and the triumph of the communists in Cuba led to another exercise of large-scale parole authority for Cuban refugees.62 By 1962, refugee programs had become global. Those programs also showed the growing importance of the executive branch in the formulation of immigration policy.63

E. Immigration Post-1960s
In the 1960s, the American economy flourished, resulting in a turning point in American immigration history with an unprecedented number of immigrants coming to the United States. In fact, the Civil Rights Movement resulted in a growing toleration of ethnic minorities and their increasing political power.64 In 1965, Congress passed the Immigration Act eliminating the national origins system and the Asia-Pacific triangle provisions sections in the 1952 Act.65 This act was truly a turning point in American immigration policy. The selection of immigrants was no longer based on their national origin. Family unification was emphasized and family chain migration was facilitated.66 Thus, the new criteria, in order of decreasing importance, were relationship to a citizen or lawfully resident alien, personal qualifications of ability and training, and chronological order of application for admission.67 The act caused a large increase in immigration to America. Thanks to it, many scientists and other professionals immigrated to United States and contributed greatly to the nation. This was the so-called brain drain to America.68 In fact, the Immigration Act of 1965 was meant to redress past grievances of
61 Reimers, supra note 45, at 32. 62 Reimers, supra note 45, at 32. 63 Reimers, supra note 45, at 32. 64 Reimers, supra note 45, at 33. 65 HUTCHINSON, supra note 4, at 66 HUTCHINSON, supra note 4, at 67 HUTCHINSON, supra note 4, at 68

371. 377. 378.

Reimers, supra note 45, at 41.

90

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

European ethnic groups and give more spaces to Asians who had become a part of American society.69 Following the end of the Vietnam War in 1975, there was a considerable increase in the number of refugees from Indochina. Most of them were from Vietnam. The influx of the Vietnamese was the most dramatic single episode involving immigration after 1965. About 400,000 Vietnamese came to America from 1975 to 1980.70 Troubles in the Middle East, like the Iran-Iraq War, contributed to another emigration. Cubans also began a new exodus by boat to Florida in 1980.71 Responding to the new waves of immigration, Congress enacted the Refugee Act of 1980 that simplified refugee procedures and granted the President power to deal with emergencies.72 The act was the last significant liberalization of American immigration policy in the twentieth century. It included a new aspect of immigration policythe recognition of the right of asylum. In fact, a generous refugee policy had become a feature of the U.S. legislation. However, due to the Cold War, refugees from nations with right-wing governments such as Haiti, Chile, and Guatemala did not receive as much welcome or support as the Cubans fleeing the Castro regime did.73 The spread of AIDS, the fear of crime, and economic crises in the 1980s caused many Americans to stop favoring liberal immigration policies.74 Congress formulated a measure to meet those problems. The measure was the Immigration Reform and Control Act of 1986. The purpose of the act was to preserve the value of American citizenship and crack down on illegal immigrants.75 Gradually, the concerns about immigrant crime and border security became a major motif of legislation affecting immigration. Two bills, the Violent Crime Control and Law Enforcement Act of 1994 and the Antiterrorism and Effective
69 DANIELS AND GRAHAM, supra 70 Reimers, supra note 45, at 41. 71 Reimers, supra note 45, at 41. 72 Reimers, supra note 45, at 41. 73 DANIELS AND GRAHAM, supra 74 DANIELS AND GRAHAM, supra 75

note 29, at 44.

note 29, at 47. note 29, at 52. DANIELS AND GRAHAM, supra note 29, at 52.

2013]

The Transformation of American Immigration Law

91

Death Penalty Act of 1996, were aimed directly at immigrants. They barred legal immigrants from working in many income maintenance programs and further restricted illegal immigration.76 On September 11, 2001, the catastrophic attacks on America opened a new era of tighter controls on immigration. The Patriot Act of 2001 provided that an immigrant could be detained or deported if he was suspected of terrorism-related acts.77 The same year also witnessed the Afghanistan War. This war and the later Iraq War drove the United States into the global war against terrorism. Due to the growing fear of terrorists, American immigration policy has become more stringent than before.78

II. THE CURRENT STATE OF IMMIGRATION

One hundred and twenty-eight years after the Chinese Exclusion Act of 1882, American immigration policy is still not as strict as it used to be. In the late nineteenth century and the early twentieth century, there was growing restriction of immigration. The restriction reached its peak during the first years of World War II; however, once the war ended, the federal government became more open towards immigrants. The Immigration Act of 1965 caused floods of people to enter the United States, and it still continues today. Those floods of people gradually made the federal control of immigration less effective. In fact, the current restriction of immigration is the most ineffective in American history. Immigration problems have become daily issues, disturbing American citizens who believe that illegal immigrants weaken the national economy and security. There are currently more than ten million undocumented aliens in the United States and that population is growing by 700,000 per year.79 Most illegal immigrants are low-skilled workers who have trouble finding secure jobs and can only obtain inadequate or
76 DANIELS AND GRAHAM, supra note 77 FRIEDMAN, supra note 21, at 584. 78

29, at 60.

MARY BETH NORTON ET AL., A PEOPLE & A NATION: A HISTORY OF THE UNITED STATES, 96782 (8th ed., 2008). 79 Tim Kane & Kirk A. Johnson, The Real Problem with Immigration and the Real Solution , HERITAGE FOUNDATION BACKGROUNDER NO. 1913 1 (Mar. 1, 2006).

92

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

crowded housing. Many live on social welfare and often break the law because they want to hide the fact that they are residing illegally. The policy of tenable neglect, which has been the favored approach to immigration in recent years, causes a profound security problem when three out of every 100 people in America are undocumented. Although they pose no direct national security threat, the presence of millions of undocumented migrants distorts the laws, distracts resources, and can create a cover for terrorists and criminals.80 As the economic cost of terrorism is high and real, new immigration laws are necessary to address the security problem.

III. LOOKING AHEAD

What will happen in the upcoming decades? As the United States is facing many economic problems resulting from the Great Recession of 2008, it currently has no capacity to admit an increasing number of immigrants. In addition, terrorism caused the government to place heavier security checks on both American citizens and foreigners entering the country. Congress will likely control the national border to ensure the security of American citizens, and it will likely craft an intelligent guest worker program to take advantage of high-skilled foreign laborers. Although the federal government will not close the border, foreigners will not be able to migrate to America as easily as they could only several decades ago. In an attempt to limit immigration, several states, Arizona in particular, have focused on restricting illegal immigration. The Arizona Senate Bill 1070the strictest anti-illegal immigration measure in recent U.S. history at the time of its passagerequires all foreigners over the age of fourteen to register with the U.S. government if they stay in America for longer than thirty days. Despite being criticized for its harshness, the bill has received majority support in Arizona and nationwide. However, most Democrats have protested the bill, while most Republicans
80

Id. at 2.

2013]

The Transformation of American Immigration Law

93

supported it. Thanks to this bill, Americans can see how divided they are on the issue of immigration. In the near future, both the federal and local governments are likely to spend considerable time dealing with illegal immigration. Although they will not deport all the illegal immigrants in the United States, they will certainly arrest and deport those considered dangerous to the civil rights of U.S. citizens. As President Obama is preparing a comprehensive immigration reform, policymakers need to evaluate potential policies and their impact on immigration. President Obamas proposal for immigration reform has four parts: first, strengthen border security; second, crack down on companies that hire undocumented workers; third, require undocumented workers to pay proper taxes, learn English, and pass background checks before they can earn their citizenship; and fourth, streamline the legal immigration system for families, workers, and employers.81 According to President Obama, these laws would better protect American citizens, combat fraud, boost the national economy through the influx of high-skilled foreign workers, and treat immigrants in a more humane way.82 President Obamas proposal for a comprehensive immigration reform, which has received bipartisan support, demonstrates American determination in fixing the broken immigration system. It also shows that both the U.S. government and American citizens believe American immigration law plays an important role in the countrys future. As long as the immigration reform could strengthen the economy, enhance national security, and address humanitarian concerns, Congress and American leaders will be able to preserve their countrys heritage as a nation of laws, of opportunity, and of liberty. In conclusion, this study of American immigration law not only provides an overview of its transformation throughout American history, but also reveals the reasons behind major legal changes made by the U.S. government. It helps readers understand the
Fact Sheet: Fixing our Broken Immigration System so Everyone Plays by the Rules , THE WHITE HOUSE, http://www.whitehouse.gov/the-press-office/2013/01/29/fact-sheet-fixing-our-brokenimmigration-system-so-everyone-plays-rules. (last visited Mar. 28, 2013). 82 Id.
81

94

BRANDEIS UNIVERSITY LAW JOURNAL

[Vol. 4

fundamentals of American immigration history and contributes to the study of the history of American law. It also articulates the critical importance of immigration law in the U.S. legal system, economy, and security. Furthermore, it supports the argument that American citizens should continuously rethink their treatment of immigrants to realize what has influenced and challenged their principles. From this regard, Americans can see how past immigration laws have dealt with immigration problems and apply new ideas to the immigration system. New laws are made by changes in human perception of the state and society. The refinement in American mentality that has been affected by profound concerns over security threats, economic recessions, and humanitarian situations, will hopefully lead to new immigration policies sensitive to the needs and concerns of both American citizens and immigrants.