President Donald Trump is again dialing up his rhetoric on immigration. “We cannot allow all of these people to invade our Country,” he tweeted recently in response to criticism of his since-reversed policy of separating families apprehended crossing the southern border without documentation. He used similarly provocative language a few days earlier, accusing Democrats of enabling foreign criminals to “pour in and infest our country.”
Lest the implications for legal enforcement be lost, the president has made clear that this is no time for constitutional niceties. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he declared.
It is tempting to interpret the president’s talk of foreign “invasion” and infestation as mere rhetorical hyperbole calculated to energize the nativist element of his political base. After all, Mr. Trump ascended to the presidency on the promise to protect the American people — their physical and financial security, their culture and language, even the integrity of their electoral system — against an invading foreign menace. He announced his candidacy with lurid images of Mexican “drug dealers” and “rapists” filing across the southern border, and later alleged that Islamic terrorists were sneaking into the country disguised as refugees of the Syrian civil war. Only extraordinary defensive measures, including a 2,000-mile-long wall along the nation’s southern border and “a total and complete shutdown of Muslims entering the United States,” could repel the encroaching hordes.
For those of us who study the history of American immigration law and policy, Mr. Trump’s anti-immigrant demagoguery is grimly familiar. The trope of immigrant “invasion,” in particular, has long been a rhetorical mainstay of campaigns to exclude or severely restrict foreign migration.
Cries of racial invasion permeated the anti-Chinese crusade of the 1870s and 1880s, which culminated in the decades-long exclusion of Chinese laborers from the U.S. As the U.S. solicitor general declared in 1892, “the most insidious and dangerous enemies to the State are not the armed foes who invade our territory, but those alien races who are incapable of assimilation, and come among us to debase our labor and poison the health and morals of [our] communities.”
But the Chinese were not the only foreign invaders stalking Americans’ political imagination. A U.S. senator announced in 1884 that laborers from Southern and Eastern Europe were the “Goths and Vandals of the modern era,” who came “only to lay waste, to degrade, and to destroy.” Italians, Poles, and Hungarians (among other degraded “races”) were descending “like vast flights of grasshoppers and locusts,” he said, to “devour and strip from us the benefit of our customs and … laws.”
When Mr. Trump conjures images of invasion or infestation, however, he is not merely claiming the rhetorical mantle of bygone nativists. By pairing the charge of invasion with an explicit call to deny foreign migrants any legal process, he is also appealing (perhaps unwittingly) to the long-standing principle that, as the Supreme Court affirmed Tuesday, “the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial review.” And indeed, for more than a century, the high court has treated immigration lawmaking and enforcement as a kind of legal anomaly, often just beyond the reach of judicially enforceable constitutional constraints.
The Supreme Court itself created this constitutional netherworld in the 1889 Chinese Exclusion Case, when it upheld the Chinese Exclusion Act adopted by Congress a few years earlier. The unanimous court reasoned that, in order to “give security against foreign aggression and encroachment” by the “vast hordes” of unassimilable Chinese “crowding in upon us,” it was essential that federal policymakers be clothed with virtually unchecked authority. “[I]f ... the government of the United States ... considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security,” the court declared, “their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.” For the justices, as for many late-19th-century jurists and statesmen, repelling this “Oriental invasion” was a matter of “national self-preservation.” It demanded a sovereign federal power that could operate free of the requirements of due process or any other constitutional guarantee — in other words, without interference by “Judges or Court Cases.”
Congress ended Chinese exclusion (as well as draconian restrictions on immigration from Southern and Eastern Europe enacted in the 1920s) more than 50 years ago, in the Immigration Act of 1965. And over the course of the 20th century, as the overt nativism and racism that animated the Chinese Exclusion Case faded from both federal immigration law and respectable political and judicial discourse, so, too, has the rhetoric of immigration as invasion – at least until recently. In the past several decades, moreover, both Congress and the Supreme Court have afforded immigrants some modest legal protections.
Yet the legacy of “immigration as invasion” endures, and not only in the president’s tweets. Large swaths of immigration law continue to operate in the long shadow of the Chinese Exclusion Case. The stakes are extraordinarily high. As the recent family separation debacle attests, those apprehended at or near the border remain exceptionally vulnerable at the hands of immigration officials. And not least, the Supreme Court’s recent decision upholding Mr. Trump’s travel ban in the face of his remarkable public statements referring to it as a “Muslim ban” is only possible when the normal constitutional constraints on executive power do not apply.
The challenges of apprehending and processing large numbers of unauthorized migrants are very real. Ultimately, however, those challenges have nothing to do — practically, morally or legally — with repelling any invasion. When the president conflates people in search of economic and personal security with foreign invaders while calling for a extra-legal exclusion process, he not only threatens to drag our national political discourse back to a meaner, more ignorant time; he claims authority to act without restraint. If history provides any guide, we will end up regretting it.
Matthew J. Lindsay (firstname.lastname@example.org) is an associate professor at the University of Baltimore School of Law.