Comprehensive Immigration Reform and the Elephant in the Room

Comprehensive Immigration Reform and the Elephant in the Room

Comprehensive immigration reform is back on the table. Last week a bipartisan Senate “gang of eight” and President Obama both announced their commitment to get a bill passed that would create a path to citizenship for some 11 million undocumented immigrants in the United States.

The announcements have stirred the hopes of immigrants and their advocates, but all know there is a treacherous road ahead. As with all complex legislation, the devil will be in the details. Although the Senate and White House proposals both feature the same major components, the most important difference that’s already emerged is whether opening access to green cards will be contingent upon securing the border. In the Senate, such linkage is clearly aimed at winning over Republicans, many of whom oppose legalization. The danger, of course, is that there will be innumerable requirements, some of them impossible to meet, and an elusive finish line. Those who come forward will receive an authorization to live and work in the United States, but without a clear path to permanent residency and citizenship, they could remain in legal limbo forever.

The proposals on offer are also notable for what they do not address. There are in fact several elephants in the room. One is the punitive system of mandatory removal instituted in 1996 that has been responsible for record-breaking numbers of deportations and a swollen detention system.

Another is the basic structural problem of allocating visas for permanent residency (green cards) in a way that virtually guarantees ongoing unauthorized entry. That structure dictates that no country may have more than 7 percent of the total number of green cards available every year. The statutory global ceiling for family- and employer-sponsored green cards is 366,000. The 7 percent maximum is 25,620.* It applies to all countries, big and small, regardless of need, relationship to the U.S. labor market, or family ties in America. It’s no wonder that every year, four countries—Mexico, India, China, and the Philippines—and only these four, max out of their allotment. The wait for a green card for some categories can be ten, twenty, even forty years. That is the reality facing these applicants (and now, the 11 million) who are told that they must “go to the back of the line.” The structural mismatch between an abstract and rigid allocation system, on the one hand, and a dynamic labor market, on the other, will continue to generate unauthorized migration.

There is nothing sacred about the “one size fits all” method of distributing green cards. It was a choice made at a certain historical moment, a choice made among others. Congress has the power to make a different choice now.

The policy for equal distribution of green cards was established in the Hart-Celler Act of 1965. That law overturned the noxious national-origins quota system, which had in 1924 established for the first time a numerical ceiling and distributed visas for permanent residency according to a hierarchy of national and racial desirability. Purportedly aiming to “preserve” the “national origin” character of the American population in 1920 (itself an effort to halt history), over two-thirds of the quotas went to northern and western European countries. The quotas blatantly discriminated against southern and eastern Europeans. Great Britain/Northern Ireland’s quota, for example, was 65,721; Italy’s was 5,802 and Greece’s, 307. Asians were excluded altogether. However, the law exempted countries of the Western Hemisphere from numerical quotas, in light of southwestern agricultural needs and the State Department’s commitment to Pan Americanism.

There is nothing sacred about the “one size fits all” method of distributing green cards. It was a choice made at a certain historical moment, a choice made among others. Congress has the power to make a different choice now.

The national origins quotas aimed specifically to keep out Italians, Poles, Slavs, and others considered to be of the “lower white races,” and Asians, deemed completely unassimilable. Immigration declined in any event with the onset of the Great Depression and the Second World War. After the war, a generation of European ethnics that had come of age in the 1940s was determined to overturn the quota system, which they rightly considered a slur of inferiority. Many of them identified with the African-American civil rights movement and considered immigration reform their own campaign for equal citizenship.

A key figure in the postwar movement to reform the national-origins quota system was Oscar Handlin, the son of immigrants, the first American Jew on the Harvard history faculty, and the scholar most responsible for establishing immigration history as a legitimate sub-field of American history. Handlin was an active public intellectual at the time, writing on civil rights, Jewish identity, and immigration policy. He attacked the national origins system as racist, the “unlovely residue of outworn prejudice,” and made the argument that Euro-American ethnic groups had the right to participate in politics as ethnics—in other words, as legitimate interest groups. He advocated not only for overturning the national-origins quotas and replacing them with equal quotas, but also for eliminating the Western Hemisphere exemption, in the interest of “fairness.” Here one can see a formal approach to equality that elided the fact that imposing numerical restrictions on countries of the Western Hemisphere, where there were none before, was regressive and not progressive.

In fact, sponsors of immigration-reform legislation in the late 1950s and early 1960s supported continuation of the Western Hemisphere exemption. It was only at the eleventh hour of negotiation over the 1965 bill that moderates in the Senate, Everett Dirkson and Sam Ervin, held repeal of the national-origins quotas hostage to Western Hemisphere quotas, citing “fairness” (a la Handlin) and, more tellingly, a “worldwide population explosion.” Even as the Johnson White House conceded to the Western Hemisphere quota, Congress understood that it would have drastic consequences. The country quotas (20,000) took full effect in Mexico and Latin America in 1976. And that is when the crisis of mass undocumented entry took off.

In the lead-up to Hart-Celler, various other immigration plans came before Congress. Most interesting for present purposes is the bill Senator Philip Hart (D-MI) introduced in 1962 and again in 1963, before President Kennedy asked him to sponsor the White House bill, which eventually passed as the Hart-Celler Act of 1965. Hart-Celler was not the bill of Phil Hart’s heart. His own plan offered a more complicated but thoughtful way of allocating green cards: 20 percent to refugees, 32 percent to countries in proportion to size (recognizing need), and 48 percent to countries according to their emigration to the United States over the last fifteen years (recognizing family and community ties). He set minimum and maximum limits to keep immigration diverse. The overall ceiling and distribution would be revisited every five years. And he kept the Western Hemisphere exemption. This imaginative plan was the product of an advisory committee that Hart had established, which included refugee and immigration experts and advocates.

Thirty-five Senators cosponsored Hart’s bill, and Life magazine urged Congress to pass it “for humanity’s sake.” Why did the Kennedy administration push it aside? The major opposition seemed to come from the State Department, which regarded an equal-quota system as a clear symbol of American fairness toward the world. Immigration reform, like domestic civil rights, had a Cold War dimension. There was also scant interest in actually increasing immigration from Asia, which, along with Latin America, would have benefited from a proportional system. And there was the beauty of its simplicity—equal quotas for all.

When I researched the postwar immigration reform movement that led to Hart-Celler, I went to the University of Michigan to consult Hart’s papers. I was surprised to find nothing about the celebrated Immigration and Nationality Act of 1965 that bears his name. His official biography recounts his long support for consumer rights and other liberal causes—but says nothing about his work on immigration. We don’t know what Hart (who died in 1976) thought about the fate of his lost bill. The silences in his archives suggest he did not consider Hart-Celler among his achievements.

Hart-Celler was a liberal reform, which overturned the racist national-origin quotas; but it was also an illiberal one that imposed harsh numerical restrictions on Mexico and other Western Hemisphere countries where there had been none before. More than forty years later, we are still wedded to the formal equalities and substantive inequalities of Hart-Celler.

Mae Ngai is a professor of history and Asian-American studies at Columbia University and the author of Impossible Subjects: Illegal Aliens and the Making of Modern America.

*Actual immigration is much higher because the quotas do not apply to immediate-family relatives of U.S. citizens (spouses, minor children, and parents).