Immigration Unilateralism and American Ethnonationalism

33 Pages Posted: 23 Oct 2019 Last revised: 19 Mar 2020

See all articles by Robert L. Tsai

Robert L. Tsai

Temple University - Beasley School of Law, Clifford Scott Green Chair in Law Visiting Professor of Law; American University, Washington College of Law

Date Written: February 12, 2020

Abstract

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people to alter the fundamental values generated during that period. In order to withstand Trumpism’s challenges, we’ll have to better understand the Immigration and Naturalization Act’s origins as an integral component of the civil rights revolution. When we revisit this history, we learn that this settlement introduced three principles into the immigration context: equality, a presumption of cultural compatibility, and family integrity. These crucial principles must be made part of any judicial evaluation of a president’s policies — especially those conducted unilaterally.

Keywords: immigration, civil rights, equality, family, migration, refugee, culture, population control, politics, popular sovereignty

Suggested Citation

Tsai, Robert L., Immigration Unilateralism and American Ethnonationalism (February 12, 2020). Loyola University Chicago Law Journal, Vol. 51, No. 1, 2019; Temple University Legal Studies Research Paper No. 2019-32; American University, WCL Research Paper No. 2020-02. Available at SSRN: https://ssrn.com/abstract=3469218

Robert L. Tsai (Contact Author)

Temple University - Beasley School of Law, Clifford Scott Green Chair in Law Visiting Professor of Law ( email )

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American University, Washington College of Law ( email )

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HOME PAGE: http://www.wcl.american.edu/faculty/rtsai/

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