In a press release issued in December 2015, Donald Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” He defended his proposal in speeches and interviews, arguing that stopping Muslims from entering the US was necessary to protect the homeland from terrorism. In one of his first acts in office, President Trump signed an executive order barring the entry of all Syrian refugees indefinitely and halting all other refugee admissions for 120 days. The order also prohibits the admission of non-citizens from seven majority Muslim nations for 90 days. Rudy Giuliani subsequently appeared on television to champion the new policy, revealing that the president invited him to help craft a Muslim ban policy that would be “perfectly legal.” Curiously, after more than a year of promising to block Muslims from entering the United States, the Trump administration now claims that their protocol does not target this group after all.
This conspicuous shift in language should come as no surprise. The administration knows that the executive order is of dubious legality since it subverts constitutional safeguards guaranteeing equal protection, due process and religious freedom. Moreover, Congress outlawed the use of “nationality” as a criterion for excluding newcomers in the 1965 Immigration Act. As a result, the White House and its supporters are engaging in convoluted word games to fend off legal challenges and distract the public from its underlying yet obvious intention to enact Muslim exclusion.
This is far from the first time that government has used veiled measures and semantic sleight of hand to discriminate against and exclude a disfavored immigrant group. Over a century ago on the West Coast, a powerful nativist movement targeted Asians, portraying them as racially unassimilable and threats to American institutions. Beginning in 1913 lawmakers in Western states adopted an array of legal measures aimed at Asian immigrants — especially Japanese — with the single-minded goal of economically disenfranchising them. Among the most notorious of these provisions were the Alien Land Laws, which prevented Asians from owning or leasing agricultural land in order to keep them from gaining a foothold in the region’s booming economic sector. Lawmakers, wary of running afoul of the Fourteenth Amendment protections barring the explicit targeting a racial group, crafted legislation that applied to “aliens ineligible to citizenship.” This was nothing more than a clever semantic contrivance that exploited the fact that Asians were racially barred from becoming naturalized citizens in the United States. In other words, nativist politicians were able to achieve their stated goal of legally discriminating against Asians without actually naming them in the alien land laws. In an interesting historical parallel, the constitutionality of the alien land measures were upheld by courts who accepted the government’s claims that Asian immigrants represented a national security threat, thereby justifying punitive measures that denied them fundamental rights available to other legal residents.
Not long after this, lawmakers in the nation’s capital were trying to enact a stricter federal immigration system. This was a high point of American xenophobia and while Asians suffered the most severe forms of exclusion, sentiment against foreigners in general ran high. Members of Congress worked to pass stricter provisions that would close the gates on an expanded list of people, including the illiterate and political radicals. Meanwhile, anti-Asian leaders had focused their attention on Asian Indians, who had been immigrating to the West and elsewhere in modest numbers compared to Chinese and Japanese before them. They had proven difficult to legislate against due to their relationship to the British Empire. During congressional debates, the Labor Department proposed adding a “barred zone” provision to a pending general immigration bill that would accomplish Indian exclusion without explicitly naming them. This zone covered immigrants from India, Burma, Siam, Malay States, Arabia, Afghanistan, part of Russia, and most of the Polynesian Islands. Given who was immigrating at the time, South Asians were the main group affected. Understanding its intent, Sen. James Reed asked, “Why exclude citizens of India, whom you say are of white blood and permit inhabitants of most of Africa to enter?” Congress passed the Immigration Act of 1917 with the provision.
The constitutionality of Alien Land Laws was upheld in 1923 and was not reversed until 1952 when a court ruled that California’s alien land law did in fact violate the Equal Protection Clause of the 14th Amendment. The Asiatic Barred Zone stood for nearly three decades and was effectively dismantled in 1946 with the Luce-Celler Act, which permitted Asian-Indians to immigrate and become US citizens. It was formally repealed in 1952. Both were justified using similar kinds of arguments we hear today, that white Americans are under siege and outsiders represent a grave threat to the wellbeing of the nation. Also similar is the bigotry masquerading as victimhood and self-defense.
For a long time, the upside of this history of discrimination and exclusion was that the laws were eventually repealed or overruled. That we are sliding back into state sponsored nativism and xenophobia is beyond troubling. It shows that those in power have failed to learn from the mistakes of the past and are enacting policies that reflect Americans’ darkest natures, rather than our best aspirations. The questions before us, then, are: What will history look like years from now? Will we have to explain why our leaders and this nation failed again so badly? And what will be the story of how we struggled to right these wrongs?