The Case for Abolishing the Immigration Laws
By Eric Lerner
Jobs and Equal Rights for All Campaign
Since June, the slogan “Abolish ICE” has gone from fringe to mainstream, with even various Democratic politicians endorsing it. Although the slogan means different things to different people, for a large and growing section of activists, “Abolish ICE” means abolishing the entire system of immigration laws. Whether the slogan is “Freedom of Movement”, “Legalization for ALL” or “Equal Rights for All who Live Here”, this New Abolitionist Movement aims at eliminating all the repressive restrictions on how people move across borders to live where they choose. Potentially this movement, emerging in response to the global scapegoating of immigrants, can have as profound an impact on the struggles of all working people as the movement to abolish slavery did 150 years ago.
So what is the case for abolition of the immigration laws? Why does this new movement deserve all-out support from working people? What would be the effect of such abolition?
First of all, the immigration laws of the US are unconstitutional. They are a threat to the rights of every person living here. The immigration laws violate the guarantee in the 14th amendment of “equal protection of laws” to all persons, not just all citizens. In addition, nowhere in the Constitution is any power granted over immigration. And the 10th amendment in the Bill of Rights states that powers not explicitly granted to the government are not granted at all.
The Racist Origins of Immigration Laws
For the first century of the existence of the United States, the free right of immigration was taken as a basic human right. For almost all this period, the government explicitly recognized this right, and there were no laws restricting immigration. For example, the Expatriation Act of July 27, 1868, c. 249 began with these recitals: "Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship."
Similarly, the treaty made between the United States and China on the following day, contained the following stipulations: "ARTICLE. 5. The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from one country to the other, for purposes of curiosity, of trade, or as permanent residents.” (emphasis added).
But only 14 years after these strong reaffirmations of long-standing US commitments, in 1882 the US government enacted the first immigration law, the Chinese Exclusion Act, which prohibited immigration from China. When the Supreme Court upheld the law in 1889 (130 U.S. 581), it used the same toxic mix of racism and national security still used today:
“To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. …. If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”
Sounds familiar, right?
What happened in the 14 years between 1868 and 1882 to so reverse the long-standing commitment of the United States to free immigration? First, in 1868 the broad coalition of black and white workers, farmers and Northern capitalists—the coalition that joined in abolishing slavery and fighting racism in Reconstruction—still existed. That coalition had passed the 14th Amendment just two weeks before making the ringing declarations of the right to free movement. But after the Panic of 1873 ended the post-Civil War economic boom, the growing conflict between workers and capitalists shattered this alliance.
In July, 1877 the potential power of the workers suddenly emerged in the Great Railroad Strike. After the third wage cut in months, workers struck in West Virginia and the strike rapidly spread across the entire country. There were pitched battles with local militias, with the workers sometimes victorious. In St. Louis, the strike led to a general strike throughout the city.
Simultaneously the attacks on the strike showed the usefulness for capitalists of reviving racist ideas that had been partially submerged by the Reconstruction alliance. In particular, in San Francisco Denis Kearney was able to mobilize workers against the strike, arguing that their true enemies were Chinese immigrants, who were stealing their jobs. Kearney linked virulent racism to anti-capitalist rhetoric and opposition to unions and strikes—the exact same formula Hitler would use 50 years later.
By 1879, the California Workingmen’s Party, which Kearney founded, had gained control of the California Constitutional Convention, passing laws banning Chinese employment. Kearney’s ability to mobilize workers against each other impressed national political leaders, who in 1882 passed the Chinese Exclusion Act.
The huge shift on immigration from a right to a threat was part of a general strategy of reviving and encouraging racism everywhere. With the Compromise of 1877, Federal troops were withdrawn from the South, leading to a reign of terror as white racist “rifle clubs” destroyed African-American rights. The Reconstruction alliance was now completely replaced by an alliance of capitalists and planters, united in their strategy of “divide and rule”.
The unconstitutionality of immigration law: a threat to all
It was not long before the threat posed to basic constitutional rights by the immigration laws became evident. In 1892 the Geary Act greatly extended the reach of the Chinese Exclusion Act by subjecting Chinese already in the United States to deportation unless they obtained “papers”: a certificate of residency attested to by two white citizens. When the law was challenged the following year in the Supreme Court case Fong Yue Ting v. United States, the Court majority again upheld it, arguing that if the United States had the power to exclude people at the border, it had the power to deport them once they are here.
But three justices, two of whom had joined the earlier upholding in 1889, dissented and laid out the basic Constitutional arguments against all deportation laws. These arguments are worth stating in some detail, as they are just as valid today as they were then.
First, the dissenters argued on the basis of the 10th Amendment of the Bill of Rights that the Constitution nowhere gave any powers to the US government over immigration, so these powers did not exist. Immigration is in fact not even mentioned in the Constitution. As Justice Field wrote, the Tenth Amendment “declares that ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.’ When, therefore, power is exercised by Congress, authority for it must be found in express terms in the Constitution. …If it cannot be thus found, it does not exist.”
Justice Brewer added that clearly among those powers “not delegated to the Government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.”
But even more critically the dissenters clearly explained that the power to deport non-citizens for no crime contradicts the guarantees of the 14th amendment that “no person” be denied “the equal protection of the laws” nor that any person be deprived “of life, liberty, or property without due process of law”. Clearly, arrest, detention and deportation are punishments. As Justice Fuller wrote: “No euphuism can disguise the character of the act in this regard. It directs the performance of a judicial function in a particular way, and inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment, and, as such, absolutely void.“ The dissenters quoted Constitution-drafter James Madison: “if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied." Since deportation, banishment from the US, is a punishment, it can only be imposed for a crime after trial by jury.
Justice Field emphasized that to make an exception in the 14th amendment for foreigners in the US was prohibited and would gut all protections: “As men having our common humanity, they are protected by all the guaranties of the Constitution. To hold that they are subject to any different law, or are less protected in any particular, than other person is, in my judgment, to ignore the teachings of our history, the practice of our Government, and the language of our Constitution. If one rule may lawfully be laid aside in his case, another rule may also be laid aside, and all rules may be discarded. …The existence of the power thus stated is only consistent with the admission that the Government is one of unlimited and despotic power, so far as aliens domiciled in the country are concerned. According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean, and put them into a boat, and set them adrift…“
Quite simply, the sweeping protections of the 14th amendment (and of the Bill of Rights, which also protects all “persons”) mean that non-citizens could only be banished for crimes that would lead to the same punishment for citizens, not for the mere circumstance of being born elsewhere.
The dissenters attempted to distinguish the power to deport those in the US from the power to prohibit entry, but clearly those powers are linked. If the US Constitution provides no power to deport foreigners, then neither does it provide a power to exclude them—and indeed it would be paradoxical to grant one power without the other.
To be clear, while the US Constitution gives no power to control immigration, the passage of people across the border, it does grant the power to control the passage of objects across the border. It explicitly grants Congress the ability to impose duties and regulate foreign commerce.
More broadly, the Constitution, in particular the Bill of Rights and the 14th Amendment, put strict limits on the coercive powers of the government—it’s ability to use force to restrict the lives of the people. On the other hand, the Constitution, through the “general welfare” clause, gives broad range to the cooperative powers of the government to organize society for the collective good. Historically, it has been the class struggle that has defined both what that collective good is, and the relative strength of the coercive and collaborative powers of the government.
The impact on rights of immigration laws
Justice Field, in his dissent from the Fong Yue Ting decision prophetically asked: “How far will its legislation go? The unnaturalized resident feels it today, but if Congress can disregard the guaranties with respect to any one domiciled in the country with its consent, it may disregard the guaranties with respect to naturalized citizens.”
That of course is exactly what happened, and with Field’s own consent. Just three years after the Fong Yue Ting case came the notorious 1896 Plessy vs. Ferguson case, upholding racial segregation, which deprived African–American natural-born citizens of their equal rights. Once again the plain language of the 14th amendment, “equal protection of the laws”, was ignored as it had been with the immigration laws. The Supreme Court, which proved unwilling to defend the rights of immigrants, proved just as unwilling to defend those of African-Americans.
The same time-worn mix of racism and national security was used half a century later in the Koremetsu case in 1944 to justify the internment in concentration camps of 145,000 Japanese American, most of them citizens. And of course, this year, in Trump vs Hawaii, the Supreme Court yet again used national security as an excuse to justify Trump’s attack on Muslims.
So the Bill of Right and the 14th Amendment guarantees of equal rights for all have been violated again and again, by Congress, Presidents, the states and the Supreme Court. Why? Who benefits from this century-plus pattern?
Again and again it is clearly the capitalists who have benefited from the ancient strategy of divide and rule. In 1877 the railroad magnates benefited as working class rage was diverted against the Chinese and against African-Americans. Throughout the 20th century, the existence of a large group of workers deprived of their rights drove down wages and working conditions for all workers, boosting profits. And today, the campaign of terror against undocumented immigrants creates another huge group of workers who risk detention, deportation and the disruption of their families if they speak out for their rights, another group whose wages can be stolen with impunity.
It is these benefits to the billionaire’s bottom lines that has again and again driven the trampling on the conditional rights of one group after another—those of African, Chinese, Japanese, Mexican or Central American descent.
It is equally clear whose interests are harmed—those of every working person in this country. The ability of anyone to defend their rights and standard of living depends on the unity of all and thus on defending the rights of all. Whenever workers organizations failed to combat the attacks on the rights of any group, immigrant or native born, their ability to organize has been crippled.
Ultimately the question is—who defends the rights guaranteed by the Constitution? Is it the President, Congress, the Supreme Court? History answers that question all too clearly. It is only and exclusively the working people who have successfully defended their rights and it is again we who must defend these rights today.
That is why the New Abolition Movement aims at the abolition of the immigration laws. Only in that way can the rights of everyone who lives here—everyone who works here—be made equal. No one will then face detention and deportation and everyone will again have the freedom to move where and when they want. The elimination of the threats against the undocumented will allow them to join with the native born in demanding what they need.
Is Ending the Immigration Laws Practical?
Can we return to unlimited immigration, as we had prior to 1889? The US is not exactly running out of space. Suppose the ENTIRE population of Mexico and Central America emigrated to the US (not likely!) and settled in the existing 100,000 square miles of urban area (3% of the total US land area). The urban population density would then rise to 4,200 people/square mile. This is one sixteenth of Manhattan’s present population density of 67,000 people per square mile. Yet this island remains one of the most-desired living places in the US. For comparison, the population density of Paris, another highly-desired living place, is almost the same as that of Manhattan.
If it needs repeating, increasing immigration decreases crime. Undocumented immigrants commit crimes at only half (55%) the rate of native-born Americans. Immigrants who have been given documents commit crimes at a rate of less than one third (31%) of native born.
The biggest criminals are not immigrant workers, but the billionaire class. It is they that stole $4 trillion in the Bailout of 2008-2009, money that went straight from the government to the largest shareholders of the banks. That’s $30,000 for every US family. Trillions more are stolen in sky-high drug, medical, insurance and interest costs.
But what about the schools, hospitals, housing and jobs that immigrants and native born both need? Right now, capitalism has not provided enough of any of this for the existing population. They would like to have us fight over the scraps that they allow. But the alternative is to link the demand for Equal Rights for ALL, including the right of free movement, to the demands for Free Public Services for ALL. The 1% has plenty of money for the houses, schools, hospitals and other infrastructure that immigrants and all working people need. A massive government infrastructure program, with direct government employment is the only way to provide them.
To take NJ as an example, the richest 60,000 people in the state, (those with more than $2 million in personal wealth) less than 1% of the population, have over $300 billion in wealth. If this were taxed at a rate of only 5% per year, it would raise $15 billion annually, nearly half the total NJ budget. That would be enough to double the state education budget, build 50,000 new housing units a year and create 300,000 new jobs.
We will not be pitted against each other to fight for a share of inadequate public services. The government can and must provide free quality services for all, paid for by taxing the rich and corporations slashing weapons spending and ending all US wars and occupations that force people to migrate. At the same time, such a public services/public works program would provide jobs for all.
How We Can Win
Not only is the vast expansion of free public services a practical necessity for eliminating the immigration laws, the new abolition fight can be won only as part of a movement that demands such expansion. Only a unified movement of the entire working class will be sufficiently frightening to the capitalists to win concessions that defeat the attacks on immigrants. Equal Rights for All, Free Public Services for All and the Jobs for All that such a massive government program will provide are interlinked demands that can only be won jointly, not separately.
Conversely, only a movement that fights for the abolition of the immigration laws can create the unity needed to win material concessions for the working class as a whole. It should be evident by now that the global attacks on immigrants has become the capitalists’ crucial strategy for dividing workers and for diverting them from fighting the billionaires themselves. The struggle, here in the US and everywhere, to abolish the immigration laws, linked to demands for massive programs to meet the real needs of the entire population at the expense of the capitalists, is the key to defeating the capitalist strategy.
If cross-class unity in a new abolition movement is needed for real victories, and if such a movement can only succeed as part of a broader movement for Free Public Services and Jobs for All, this may appear to be a chicken-and-egg problem. Which comes first? But in reality, like any real historical process for social change, this movement can grow exponentially once local, limited victories get it rolling.
The current campaign to end the contracts between various counties and municipalities to hold immigrant detainees for ICE is a good example of how to obtain such local, limited victories that can act as sparks to a far wider fire of a national movement to abolish the immigration laws. In NJ, as previously reported here, we have joined this battle to the broader goals of Equal Rights for ALL, Free Public Services for All and Jobs for All. As such local battles are won, a national movement can grow strong enough to win.