by Rebekkah Pei
In examining the complex legal and political dynamics surrounding immigration policy in the United States, the need for comprehensive legal reform to create a fair and just immigration system that aligns with the fundamental principles of the nation becomes clear. The lack of clear constitutional guidance on immigration has resulted in a system that is largely driven by political ideology rather than legal structures. Immigration policy in the United States has often been influenced by changing political landscapes and public opinion, resulting in a historical oscillation between two extremes – administrative discretion and maximum enforcement of the laws on the books. The current system of immigration in the United States is inadequate, with political ideology often taking precedence over legal structures.
To understand these inadequate legal structures, taking a step back is necessary. Looking back, it’s clear that immigration laws have always had underlying motivations of excluding or including certain racial or ethnic groups. Prior to the mid-20th century, there were, in fact, openly discriminatory immigration policies across the world, particularly in the United States. The Chinese Exclusion Act and the Alien and Sedition Act are both examples of direct and legal efforts to halt immigration from the “undesirable” regions of the world.
However, as explicit racism became illegal and widely frowned upon, restrictions shifted towards more subtle ways to exclude racial groups. These methods included dictation tests, language literacy measures, and landing taxes, which achieved the same discriminatory objectives but in a less explicit and legal way. The paper “Legal Transfers of Restrictive Immigration Laws” authored by Daniel Ghezelbash explores these “loopholes” in discriminatory immigration policy and insists that the United State’s policies have always — and will always — be intertwined with racial biases.
Now that the intent behind most immigration policies has been established, it’s time to examine why certain policies lean one way, and some the other. As mentioned above, there is a clear lack of constitutional regulation of immigration, which contributes to the historical oscillation between two extremes in policy. Author Freddie Wilkinson argues in the article “The Federal Role in Immigration” that it’s extremely difficult to establish any kind of permanent, constitutional change in how this country accepts or denies immigration because that kind of structure to create the laws does not exist. This means that it’s almost become too easy to create short-term, fleeting policies based on the whims of the sitting president. What’s being referred to, of course, are executive orders. Executive orders are simply orders by the president that are to be enforced as laws, but with little permanence.
The most recent example of this polarizing phenomenon is Obama’s DACA (2012) program, which provided illegal child immigrants a path to citizenship, versus Trump’s “Muslim Ban”/Executive Order #13769 (2021) which restricted refugee resettlement from select middle eastern countries, enacted less than a decade later. These two almost opposite policies were enacted less than a decade in between each other.
This vague and confusing structure is both inefficient and unfair. Constantly changing policies and procedures put millions of immigrants in the hands of the constant oscillation of American politics, which seems to be the antithesis of what this nation stands for. The monikers “Nation of Laws”, “Melting Pot” and “Land of the Free” can only stand if they’re true. Legal reform is needed to establish a fair and just system that aligns with the fundamental principles of the nation.
So, the next question is, “How?” Changing immigration laws in America is a complex and difficult process that often requires navigating a complex spider web of legal and political barriers. The immigration system has been the subject of heated debate and controversy for decades, with various interest groups and stakeholders often holding differing and conflicting opinions on how best to reform the system. In the article “Restoring the Rule of Law through a Fair, Humane, and Workable Immigration System” (2021), author Madial Coleman emphasizes the need for an immigration system that is aligned with the fundamental principles of America.
Coleman identifies four critical goals that a new legal immigration system should achieve. First, the system should be able to respond to changing needs, such as changes in the economy, demographics, and labor markets. Second, a humane and fair system of refugee and asylum should be established to protect those who are fleeing persecution and violence. Third, the system should prioritize proportionality, accountability, and due process in immigration enforcement, ensuring that individuals are treated justly and fairly. Finally, a path to citizenship should be created for undocumented immigrants and other individuals who have long resided in the country.
Although it’s worth acknowledging that systematic change doesn’t come easily in the United States, despite the difficulties, it is important to remain hopeful that progress can be made. By advocating for change, engaging in constructive dialogue, and building alliances with like-minded individuals and organizations, we can work towards creating a more just and equitable immigration system that upholds the fundamental values of fairness, compassion, and dignity for all people.