After last March’s immigration raid on a manufacturing plant in New Bedford, Massachusetts, several victims of the federal government’s military-style tactics filed a lawsuit in federal court alleging that their constitutional rights were violated. The First Circuit Court of Appeals, based in Boston, recently released its opinion. According to the court, the Immigration and Customs Enforcement Agency (ICE), the arm of the Department of Homeland Security charged with immigration law enforcement, acted “ham-handedly.” Whatever that means, it’s not a compliment.
Daniel Kanstroom’s Deportation Nation is an exhaustively detailed yet readable historical analysis of deportation law. Kanstroom, a law professor and immigration lawyer, explores the entire history of U.S. immigration law to find the threads that built the modern deportation law regime. Deportation law, he argues, has been used for two purposes: border control and post-entry social control. As he explains, the resounding calls to strengthen national security have facilitated the militarization of the border. Meanwhile, post-entry social control laws—that is, laws allowing deportation of individuals from the country’s interior—enable the propagation of a particular (if constantly shifting) image of the nation’s racial and political identity.
Kanstroom shows special ire toward the post-entry social control laws. These mark the critical distinction between laws that apply to citizens and those that apply to noncitizens. “Post entry laws,” he writes, “proscribe criminal or political conduct within the United States…. There is no requirement that a noncitizen be informed of them at entry. Indeed, they may be changed retroactively.”
By tracing more than a century of Supreme Court decisions he describes the court’s willingness to adopt a two-tiered legal system in which the Constitution protects some while ignoring others. The plenary power doctrine, he explains, allows Congress to make rules for noncitizens that would be illegal if applied to citizens. As former Chief Justice William Rehnquist wrote in a 2003 decision: “This Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.”
Congress has used this remarkable power to target all variety of “undesirable” elements perceived as politicians’ latest disfavored group. In addition to the well-known targeting of leftists and a host of racial groups thought to be dysgenic or worse— from 19th century Chinese to today’s Latina/os and Arabs—Kanstroom also reveals some unlikely victims of deportation law. He traces one of the earliest instances of deportation to 17th century Acadians, French settlers along isolated stretches of present-day Maine, Nova Scotia, and other parts of Canada.
He argues that the modern deportation system owes important beginnings to the colonial practice of “warning out,” in which poor people were excluded or forcibly relocated from New England towns. Later, he writes, the Fugitive Slave Act became the first “large-scale, relatively efficient federal system for the forced removal of people from one place to another on the basis of rather scanty proof, with minimal or no judicial oversight, and with only the most flimsy constitutional protections.”
Through it all, Kanstroom’s depiction reads like a survey of radical leftist history. From attacks on the Industrial Workers of the World, to the deportation of Emma Goldman and the infamous Palmer Raids targeting untold numbers of anarchists, to the protracted efforts to strip unionist Harry Bridges of his citizenship for allegedly advocating communism, deportation law has frequently been utilized to quash political radicalism. This has been especially true within communities that, at the time, were considered non-white. For example, Goldman was a Russian Jew, anarchism was rampant among Italians, and J. Edgar Hoover deported Marcus Garvey.
Overall, Kanstroom’s account serves as a lesson in the fluidity of hysteria-driven scapegoating and the unparalleled flexibility of deportation law as a vehicle for the worst excesses of law-sanctioned attacks on human rights. He leaves little doubt that the modern deportation law regime functions as a coercive mechanism through which policymakers repeatedly assert control over people they perceive as unfit for membership in the national body.
This, perhaps, is the greatest quality that Kanstroom brings to the current immigration debate. The vivid account of court opinions and political machinations leaves no question that the recent ICE raids are in no way extraordinary. On the contrary, they are simply the latest manifestation of a century-old jurisprudence rooted in fear of the other—at times defined as members of a particular racial group, at other times adherents of a particular ideology.
Neither of these categories, of course, has ever been particularly well defined. For decades, courts struggled with how to classify particular individuals into existing racial categories. Syrians were sometimes white, sometimes not. One court said Asian Indians were white, then the Supreme Court said they were not. Mexicans became white partly because they were neither Black nor “Mongolian,” the other two options available at the time. On the political front, after being an anarchist became a crime and grounds for deportation, associating with anarchists was good enough to be labeled as such for purposes of deportation.
But, as Kanstroom suggests, the niceties of clear distinction has rarely been a value embraced by deportation law. The immigration “court” system is part of the executive branch rather than the judicial branch. Worse, in the last 20 years the immigration system has increasingly blurred the line between civil and criminal law. Prior to the 1986 immigration amendments that granted amnesty to millions of people already here while imposing, for the first time, sanctions on employers who hired undocumented people, immigration proceedings were considered solidly civil proceedings. To be sure, this was no rosy process for immigrants. The law was stacked against immigrants caught in deportation proceedings.
Because they are considered civil proceedings, deportation hearings do not guarantee most of the constitutional protections commonly associated with court processes. The secret evidence that the government has used in terrorism cases recently and that has been rightfully criticized has long been a part of deportation proceedings. Further, detainees who cannot afford a lawyer are not entitled to have the government provide one. Due process is defined as virtually whatever Congress decides it is. And that hallmark of democratic governance, the prohibition against ex post facto laws, does not apply.
Clearly things were bad before 1986. Since then, however, things have gone from bad to horrible to something worse than that. Almost 100 years after enacting the first deportation law, Congress decided to shift its focus from keeping people out to getting rid of people already here. Until 1986 deportations rarely exceeded 2,000 per year. In 1987 that number jumped to over 4,000. By the end of the 1990s over 40,000 people were being deported every year.
This increase can be credited in no small part to two laws passed in 1996 in the hysteria that followed the bombing of the federal courthouse in Oklahoma City—the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Enacted with President Clinton’s signature, these laws signaled an unprecedented expansion of grounds for deportation. Combined with other laws passed before and since, these laws expanded the definition of “aggravated felony,” a deportable offense, from three crimes —murder, weapons trafficking, and drug trafficking—to two subparts that could be applied retroactively and included such offenses as receiving stolen property and tax evasion. At the same time, federal courts were largely stripped of their power to review decisions made by immi- gration judges.
The last 20 years of post-entry social control laws have streamlined the deportation system. The result has been a much more efficient process. But efficiency in the context of a quasi-judicial system that excludes many of the Constitution’s guarantees is a polite way of saying, as Kanstroom does, “that deportation law was outside the mainstream of the U.S. rule of law.”
Since 2005 immigration has become a lightning rod in Washington, state capitals, and city halls. Presidential candidates are constantly questioned and, with a few notable exceptions like Representative Dennis Kucinich, all seem eager to show their toughness. Deport, deport, deport has become the new mantra. In this context, we would be wise to heed Kanstroom’s diagnosis: “As a 100-plus years social experiment, the U.S. deportation system has caused considerable harm and done little demonstrable good.”
César Cuauhtémoc García Hernández is an attorney. His articles have appeared in law reviews at Boston College, Loyola University New Orleans, and Seattle University, as well as magazines, newspapers, and online.