Immigration & Nationality Review (Forthcoming)
54 Pages Posted: 3 Dec 2013
Date Written: December 2, 2013
This was prepared as a chapter for a forthcoming book on the 50th anniversary of the Immigration Act of 1965 and as an original article for the IMMIGRATION & NATIONALITY REVIEW.
In the celebratory wake of the passage of the Civil Rights Act of 1964, Congress enacted the Immigration Act of 1965. Consistent with the emerging popularity of the extension of civil rights protections to racial minorities in the United States, the 1965 Act eliminated the discriminatory national origins quotas system from the U.S. immigration laws, which Congress had passed in 1924 when xenophobic sentiment was at one of its periodic highpoints in American history.
In the 1965 Act, however, Congress went considerably further than simply removing the discriminatory quotas from the immigration laws. Affirmatively acting to eliminate various forms of bias that had been part and parcel of the American immigration laws for generations, Congress flatly prohibited a variety of considerations from influencing the U.S. government’s decisions to issue immigrant visas: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence . . . .” This firm admonition imposes on the U.S. government the equivalent of what might be characterized as a color-blindness-plus requirement in the evaluation of immigrant visa applications, a fundamental transformation of the nation’s previous approach to immigration admissions.
Almost reflexively characterizing the law as a welcome by-product of the civil rights movement that fueled passage of a flurry of civil rights laws, most observers have in unqualified terms praised the 1965 Act as a progressive, if not revolutionary, measure. As Professor Bill Hing glowingly put it, the Immigration Act of 1965 reformed the American immigration laws in the spirit of the “new global egalitarianism.”
The elimination of the discriminatory quotas system benefited large numbers of prospective immigrants from Asia, who since the late nineteenth century had been denied lawful admission into the United States through the operation of the quotas system combined with an insidious and intricate web of “Chinese exclusion laws,” born out of widespread racial animosity directed toward the Chinese. Over time, Congress had expanded the various exclusions to restrict immigration not only from China but from all of Asia, thus making them most appropriately termed “Asian exclusion laws.”
As racial sensibilities slowly but surely changed over the course of the twentieth century, the discriminatory quotas system increasingly became difficult to defend both at home and abroad. Criticism, including from prominent political leaders such as President Harry Truman and Senator (and later President) John F. Kennedy, grew over time as it became more difficult to square the systematic national origin quotas system with the burgeoning American ideal of non-discrimination against racial and ethnic minorities. The blatant discrimination in the immigration laws became a foreign policy embarrassment that seriously handicapped the U.S. government in its ongoing Cold War efforts to persuade hearts and minds the world over of the righteousness of the American cause.
Despite the significant anti-discriminatory improvements to the American immigration laws, the Immigration Act of 1965 also made less well-known changes to the law that are unworthy of celebration. They in fact deserve outright condemnation by precisely the same civil rights advocates who praise the law. Intentionally discriminatory at their core, the changes in fact are wholly inconsistent with the extension of civil rights to racial minorities in the United States and operate to deprive a discrete group of noncitizens of color – Latina/o immigrants – to equal treatment under the law.
Specifically, the 1965 Act added a new, although considerably more sophisticated – and less visible – form of racial discrimination than the national origins quotas system, to the modern American immigration laws. Rather than unintentional, or reluctant, racial discrimination, Congress admitted its discriminatory goals and enthusiastically backed those reforms with an express hope of significantly restricting the number of Latina/o immigrants coming to the United States. Indeed, Congress collectively expressed the fear that, absent bold new restrictive steps in the Immigration Act of 1965, Latina/o immigrants might well overrun, and possibly even destroy, American society.
Seeking to fill a serious gap in the scholarly literature, this chapter examines what might accurately be described as the anti-Latina/o underside of the Immigration Act of 1965. In doing so, it places into question the heretofore largely unchallenged myth that the 1965 Act represents one of the sterling achievements of the much-heralded civil rights movement, marking a positive reform of U.S. immigration law by bringing racial neutrality, objectivity, and equality to American immigrant admissions.
The truth of the matter is that, despite its decidedly pro-civil rights reputation, the Immigration Act of 1965 represents one of the first major changes to the immigration laws in American history that demonstrates an unmistakable intent to cap immigration from Mexico, as well as all of Latin America, to the United States. In so doing, the law established a sturdy foundation from which the modern American immigration enforcement state has evolved, with its glaringly disparate racial impacts on Latina/os that is achieved through seemingly objective, facially neutral (i.e., color blind), and ostensibly fair means.
Specifically, the Immigration Act of 1965 set the stage for the creation and implementation of a virtually unbroken series of restrictive U.S. immigration laws and enforcement measures directed primarily at Latina/os that remained in place for the last third of the twentieth century. With broad public support, those measures have been expanded dramatically in the early years of the new millennium and have resulted in record numbers of removals of immigrants from the United States – now running in the neighborhood of 400,000 a year, an increase of more than ten-fold in the last twenty years. Not coincidentally in light of the disparate focus and impacts of the modern removal machinery, the new enforcement measures year after year have yielded record numbers of removals of Latina/os.
In the five decades since passage of the 1965 legislation, U.S. immigration law and its enforcement have slowly but surely built on the anti-Latina/o roots of the law. As a result, immigration enforcement has progressively focused – some would contend almost exclusively – on limiting migration from Mexico to the United States. The transformation of immigration law has been so complete that many Americans today firmly believe that curbing Mexican immigration is what U.S. immigration law and border enforcement should be all about. Some informed observers, especially critics of the status quo, would lament that that in fact is the case today.
The chapter explains how the implementation of the Immigration Act of 1965 contributed to the subsequent growth of a series of interlocking laws and enforcement programs primarily targeting Latina/os, which, at the dawn of the new millennium, dominated modern American immigration law and enforcement. One might claim that, over the last 50 years, the United States replaced the Chinese exclusion laws of the 1800s with something akin to the Mexican exclusion laws of the twenty-first century.
By re-allocating opportunities for lawful immigration from Latin America to Asia – and diminishing legal discrimination in admissions against Asian immigrants while expanding discrimination against Latina/os, the Immigration Act of 1965 transformed the relative mix of Asian and Latina/o immigrants legally coming to the United States. The Act, on the one hand, contributed to a surge in legal immigration from Asia, which historically had been stunted by discriminatory laws as well as the long travel distances from Asia to the United States. On the other hand, by placing an artificial ceiling on legal migration from Mexico wholly disconnected from the great (and increasingly unsatisfied) demand for immigration, the legislation simultaneously spurred the growth of a large – and consistently expanding – population of Mexican immigrants unauthorized by the U.S. immigration laws from being in, and subject to removal from, the country. These two dominant trends in immigration to the United States in turn contributed to noticeable changes in the racial demographics of American society in the post-1965 period, the public’s view of immigration and the need for enforcement, and ultimately the overall direction of U.S. immigration law and its enforcement.
Changes to the racial composition of the overall population helped to provoke the public’s sporadic outbursts of venom directed at immigrants and frequent demands for reform, as well as heightened enforcement, of the U.S. immigration laws. The new racial demographics of modern immigration also fueled the demands for a variety of changes to the immigration laws that would transform – some observers might contend that the conscious intent was to “whiten” – the racial demographics of the flow of immigrants to the United States. One well-known (and rather blatant) example of such efforts is the “diversity” visa program that Congress added to the immigration laws in 1990, which at its core was designed to facilitate greater migration to the United States from Europe. In the end, those legal maneuvers in combination greatly limited legal immigration from Mexico to the United States.
Suggested Citation: Suggested Citation
Johnson, Kevin R., The Beginning of the End: The Immigration Act of 1965 and the Emergence of Modern U.S./Mexico Border Enforcement (December 2, 2013). Immigration & Nationality Review (Forthcoming); UC Davis Legal Studies Research Paper No. 360. Available at SSRN: https://ssrn.com/abstract=2362478