On May 29, 2013, co-blogger Chris Hendrix started off a very promising post series to explore the origins of immigration restrictions, the rationales used when introducing them, and how they were gradually modified into their present form. His first post in the series took an in-depth look at the Chinese Exclusion Act of 1882, the first large-scale restriction of immigration to the United States after nearly a century with nearly unrestricted migration. Chris went into considerable detail into the rationales proffered for the law, and found them flawed in light of both the evidence available at the time and the evidence that would accumulate over the coming decades.
With Chris’s permission, I’m taking this very important series over from him. This post will look at the Chinese Exclusion Act, but from a different angle: how was it implemented? As the United States’ first foray into a systematic control of a border, what legal ambiguities did it give rise to, and how were those resolved? What aspects of the modern immigration control regime, in the US and elsewhere around the world, can be traced to the way these ambiguities were resolved?
Let’s first get an idea of the sort of world that existed at the time.
A different world
Migration back in the day was qualitatively similar to South-South migration today: relatively unregulated and unprotected. But this is part of a broader feature of society back then: goverment was less centralized and far less powerful and all-knowing than it is today:
- Passports did exist, but most people didn’t bother to get them.
- Social Security, and Social Security Numbers, didn’t exist.
- There was no federal income tax.
- Since there was no tax withholding, employers had no federal reporting requirements, and they didn’t have reporting requirements in most states either. In other words, the state didn’t have a reason to record most work activity.
- There was no Green Card, or Green Card-equivalent. Non-citizen permanent residents had no document that directly established that status for them.
- There was no nation-wide interior enforcement for immigration law.
- Entry by land from Mexico and Canada was largely unrestricted.
So what did exist?
- Ports of inspection for people and goods coming by sea, from the Atlantic or the Pacific. These ports were not intended primarily for immigration enforcement, but were mainly used for customs enforcement. At the time of the Chinese Exclusion Act, there were, as far as I am aware, no designated ports on the West Coast exclusively for immigration enforcement. Angel Island, the main such port, would become active only in 1910. The corresponding port in the East Coast, Ellis Island, would open only in 1892, though there were other immigrant processing stations before that on the East Coast, such as Castle Garden.
- City officials in various cities could act as de facto immigration enforcement. They could ask residents of the area for documentation proving that they were citizens (this would typically involve a birth certificate that would need to match with the city’s records, or a demonstration that the parents were US citizens, or a proof of naturalization). Enforcement would therefore be zealous only in places where the natives and the officials representing them cared enough about the matter. In practice, therefore, immigration enforcement followed the principle of subsidiarity — even though the legislation was determined at the federal level, interior enforcement was largely a local matter.
Racism, citizenism, territorialism, and high versus low skill
All the elements found in the modern border control regime could be glimpsed in the Chinese Exclusion Act as it played out. First off, the act was overtly discriminatory in a racial and ethnic sense. It could be argued that many immigration laws today are racist, albeit in many cases they are not overtly so. But the racial/ethnic component to the Chinese Exclusion Act was both more morally acceptable and palatable and more practically enforceable.
If you are trying to enforce immigration law, that requires a lot of potential violations of civil liberties, not only for the immigrants, but also for people who might be suspected of being immigrants. The Chinese Exclusion Act explicitly restricted itself only to targeting (a subset of) the ethnic Chinese. This subpopulation was sufficiently distinctive in appearance, customs, and linguistic habits. Thus, the collateral damage inflicted by the law on those not in violation of immigration law was limited to other ethnic Chinese.
In today’s world, it is possible (though still far from easy) to carry out some semblance of border and interior enforcement targeted at potential immigrants that has minimal collateral damage for citizens, without being so explicitly racially targeted. For this, we can thank (or blame) the record-keeping surveillance state that can track people much better. At the same time, it is somewhat harder to use explicit racial/ethnic targeting, because of greater levels of ethnic mixing. People of different national origins no longer look so obviously different, thanks to some degree of global convergence in culture, and also (to a less extent) greater interbreeding leading to many many more intermediate forms of physical appearance.
The racism of the law was therefore necessary for it to get off the ground, and for immigration enforcement to get an early testing bed while leaving the majority of the population unaffected. Just as the income tax started out as a tax on the super-rich and gradually grew to cover a majority of income-earners in the United States (and most other countries) immigration enforcement sharpened its ax on a relatively vulnerable, distinctive, and reviled population before spreading its wings to society at large. As they say, First they came for the Chinese. As history.com puts it:
American experience with Chinese exclusion spurred later movements for immigration restriction against other “undesirable” groups such as Middle Easterners, Hindu and East Indians, and the Japanese. The Chinese themselves remained ineligible for citizenship until 1943.
The second interesting emergent feature of the law, as it came into practice, was its citizenism, in more senses than one. First, as Chris described at greater length in his post, the law was justified in terms of citizenist premises, though there was the occasional nod to how it would be good for China as well to keep all its population within. Second, those Chinese who were already citizens continued to enjoy citizenship — at least in principle. They still were at greater risk of getting into trouble (because they were in the ethnic group suspected of harboring illegal immigrants) and they often couldn’t bring family members in, but they still enjoyed the constitutional rights of citizens. They could leave the country and return as they pleased (provided the officer at the port of entry was convinced they were actually citizens, and there were sometimes messups).
Third, the implementation of the law provided the early contours of territorialism: Chinese who had immigrated but not naturalized prior to the passage of the Act were not allowed to naturalize, but they were not required to leave the country. As long as they were physically present in the country, they enjoyed the rights of non-citizens (subject to the caveat of being harassed due to the suspicion). However, if they left the country and tried to return, they could be denied entry. This was formalized in the Scott Act of 1888 discussed later in the post. This was an early precedent for the current regime that distinguishes between entry visas and authorized stays.
Fourth, the high versus low skill distinction emerged in the law. The law banned the migration of skilled and unskilled laborers, but allowed for the migration of people in white-collar professions, if they could get documentation from the Chinese government to that effect, and could convince the officer at the port of entry. In practice, many people in white-collar professions also found it hard to enter due to lack of adequate documentation. This again resembles the current system, where high-skilled immigrants need to, and often fail to, jump through the many hoops needed to demonstrate their high skills.
The Immigration Act of 1882
The Chinese Exclusion Act was accompanied by the first piece of federal legislation on immigration enforcement, the Immigration Act of 1882.
The first component of the act, as described by Wikipedia, was its self-financed nature:
The first was to create a “head tax” that would be imposed upon certain immigrants entering the country. The Act states that “There shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.” This money would be paid into the United States Treasury and “shall constitute a fund called the immigration fund.” These funds would be used to “defray the expense of regulating immigration under this act.” Scholar Roger Daniels commented that the head tax eventually “would rise, in stages, to eight dollars by 1917. In most years the government collected more in head taxes than it spent on administration.”
The fact that the costs of immigration administration are largely borne by user fees remains true to this day, as I discuss in another post.
Wikipedia then goes on to describe its implications and segues into the second component of the Act:
The creation of such administration, and the need to collect and disburse the head taxes throughout the bureaucratic chain, lead to the creation of “the first immigration bureaucracy.” It was a significant turning point of immigration policy in terms of relying on federal level legislation and administration. While this was not the first federal immigration law, as others were mentioned previously, states and local levels of immigration ports were mainly in control of immigration policy. The Immigration Act of 1882 was the beginning of the “contours of federal oversight” in immigration policy administration. In addition to the head tax, the Act also stipulated the responsibility of government agents to inspect ports and vessels bringing immigrants into the country.
This then led to the second historically significant component of the Act. Upon inquiry of the vessels transporting immigrants, immigration officials were given the authority to expel certain immigrants based on criteria laid out within the Act. The legislation dictated that “If on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of him or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such person shall not be permitted to land.” Furthermore, if a criminal was found to be on board, it was the fiscal responsibility of the ship that brought the immigrant there to take them back out of the United States. The criminal provision of the act did not include immigrants who were “convicted of political offenses, reflecting the traditional American belief that the United States is a haven for those persecuted by foreign tyrants.”
The Immigration Act of 1882 was primarily aimed at facilitating enforcement of the Chinese Exclusion Act, but the passage of the acts was also at a time when people were increasingly discussing the scale and impact of European immigration. Again quoting from Wikipedia:
During the same time that America immigration was restricting Asian (specifically Chinese) immigration, many also criticized the influx of European immigration – later referred to as the “Great Wave” – coming to the United States. As Europe’s urban industrialization was changing the demographic landscape of life in many European cities, millions looked to immigrate in order to find opportunity in America. Calling it the “most massive of all human migrations to date,” scholar Otis. L. Graham reported that almost “27 million immigrants settled in the United States between 1880 and 1930”. Furthermore, as explained in Debating American Immigration: 1882–Present, Roger Daniels explained how “great growth in the volume of immigration in the Gilded Age made some kind of organized administration necessary”. This need and call for an “organized administration” would later be somewhat realized in the administrative outcomes of the Immigration Act of 1882.
The Bayard-Zhang Treaty
As HarpWeek describes:
After the anti-Chinese riots of 1885-1886, the Chinese government concluded that the inability of the American government to protect Chinese living in America meant that China would have to limit emigration itself. In August 1886, the Chinese foreign office proposed to the U.S. State Department that a new Sino-American treaty be drafted. In January 1887 negotiations began as American politicians geared up for the 1888 presidential election campaign. (Grover Cleveland had won a razor-thin victory in 1884, while losing the electoral votes of California, Oregon, Nevada, and Colorado.)
The United States originally wanted Chinese immigration suspended for thirty years and a prohibition of all certified Chinese residents in America from returning to the U.S. after visiting China. The Chinese agreed to suspend new emigration for twenty years and to forbid the return of Chinese-American laborers who visited China, unless they had property, financial claims, or family in the U.S. The Chinese government called on the U.S. to provide better protection of resident Chinese and indemnities in cases of future outbreaks of anti-Chinese violence. Negotiations were difficult, but an accord was finally reached in March 1888. The Bayard-Zhang Treaty prohibited Chinese immigration or the return of Chinese laborers to the U.S. for twenty years, unless the laborers had assets worth at least $1,000 or immediate family living in America. The United States government agreed to protect Chinese people and property in America.
Many features of the events here have parallels today. Government officials are often shamed by their subjects when people from the country are mistreated abroad, and this can be an incentive for them to lobby for better treatment of those people, as the Chinese did with the US. At the same time, their genuine concern for the welfare of the people isn’t that great — otherwise, why ban emigration rather than letting people decide for themselves if the benefits of the foreign land outweigh the risks? Thus, the governments can claim to be concerned about people originating there who live abroad while also foreclosing opportunity for potential emigrants.
Nonetheless, the opportunity to emigrate matters to people despite the many risks of the journey and mistreatment and the destination, and governments, even non-democratic ones, often have to grudgingly acknowledge this fact. This is why, in the 1990s, the Chinese government offered effective safe haven to Sister Ping, a woman who had helped many people escape China to the United States, including political refugees. She was so popular in the Fujian province that cracking down on her wasn’t worth it for the government. And this is also the reason that, back in the 1880s, the Chinese government ultimately refused to ratify the Bayard-Zhang treaty. Harpweek continues:
The Bayard-Zhang Treaty was greeted with tremendous opposition in China, particularly in Kwangtung province from where most Chinese immigrants to America originated. The diplomatic agreement was criticized in newspaper editorials and vilified in mass demonstrations. Chinese in America also denounced it. Consequently, the Chinese government refused to ratify the treaty unless the period of suspension was shortened and more exceptions were allowed for the return of Chinese laborers.
The treaty, although a failure, might also have been an inspiration of sorts for the (never ratified) Gentlemen’s Agreement of 1907, whereby “the United States of America would not impose restriction on Japanese immigration, and Japan would not allow further emigration to the U.S.”
Scott Act of 1888
With the Bayard-Zhang Treaty in tatters, the United States federal government unilaterally passed the Scott Act, that would prevent Chinese laborers from re-entering the United States. As Harpweek puts it:
With the Bayard-Zhang Treaty in doubt, Congress acted unilaterally by passing the Scott Act, signed by President Cleveland on October 1, 1888. Introduced by Representative William Scott of Pennsylvania, chair of the Democratic National Campaign Committee, it permanently banned the immigration or return of Chinese laborers to the United States and ended the certification (exit visa) process. The bill passed the House unanimously and met only slight resistance in the Senate (for legislatively undermining diplomatic negotiations). Mass demonstrations in California celebrated the new law. About 20,000 Chinese had left the U.S. temporarily for China and were refused reentry (including about 600 who were already traveling to America when the legislation was enacted). The Supreme Court upheld the Scott Act. The Chinese government, however, refused to recognize its legitimacy.
The legal challenge being referred to is Chae Chan Ping v. United States, decided by the US Supreme Court on May 13, 1889. You can access the documents in their entirety here. Or read the summary from Immigration in America:
Chae Chan Ping, a subject of the emperor of China, worked as an unskilled laborer in San Francisco, California, for about twelve years. In 1887, he went to China for a short visit. Before leaving, he obtained a customs certificate entitling him to return to the United States. On October 1, 1888, Congress amended the 1882 Chinese Exclusion Act with the Scott Act, which included a complete prohibition on the reentry of all Chinese laborers who left the country, even if they had legal certificates to the contrary. The Scott Act was inconsistent with rights guaranteed to Chinese visitors in the 1868 Burlingame Treaty and the 1880 Treaty Regulating Immigration from China. When Ping arrived at the San Francisco port on October 8, 1888, Customs House officials, because of the Scott Act, refused his request to land. After Ping’s appeal to the federal district court in California was unsuccessful, the Supreme Court agreed to review the case.
Systematic immigration enforcement begat systematic immigration fraud. The most common form of immigration fraud was called “Paper Sons” — those in China who were already US citizens claiming fraudulently that some other Chinese were their offspring in order to allow them to move to the US. The fake paper trail that led to the creation of Paper Sons originated in court challenges. Later, after a major earthquake and associated fire in 1906 destroyed the city records in San Francisco, many more people claimed to be Paper Sons. Also, Chinese who visited their homes back in China could bring back their offspring with them, and this allowed them to bring back children who were not actually their children but were their “Paper Sons.”
Steve Kwok describes the phenomenon in a page on the Angel Island Immigrant Station Foundation website:
Many Chinese gained entry into the United States by purchasing fraudulent documentation identifying them as American citizens. Several historical events created these documents that would allow individuals to sell and purchase these “paper son” certificates.
While trying to enforce the Chinese Exclusion Act of 1882, the courts and U.S. Immigration documented the identities of existing Chinese in America. Much of the documentation was based on oral evidence given by existing Chinese residents during court challenges. Included in these documents were details of family history and village life. This set of documentation became the first set of “paper son” certificates sold to people in China.
Another event that created more “paper son” certificates was the earthquake of 1906 in San Francisco. The earthquake and resulting fire destroyed all records at the San Francisco Hall of Records, thus enabling any Chinese to claim “native birth” citizenship. With no written records to contradict them, many Chinese became citizens by this method.
Being “native born” allowed many Chinese to go back to China. Upon returning to the U.S., a “native born” citizen could claim that he or she had children while in China, thus creating another source of “paper son” certificates. These were later sold to people in China to gain entry into the U.S.
This practice of entering the U.S. as “paper sons” was entirely due to the exclusion laws of 1882 – 1943. All the “paper sons”, as with most immigrants including my father, wanted to come to America in search of a better life.
The birth of “anchor babies”: Wong Kim Ark and birthright citizenship
United States vs Wong Kim Ark was a Supreme Court case decided in 1898 that dealt with interpretation of the Citizenship Clause of the Fourteenth Amendment to the United States Constitution. The question at hand was whether Wong Kim Ark, born in 1871 to Chinese parents in San Francisco who were not US citizens, automatically became a US citizen by virtue of the Citizenship Clause. The court’s interpretation of the clause established “birthright citizenship” (jus soli) roughly as we now know it. Quoting from Wikipedia:
The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is subject to the jurisdiction thereof acquires automatic citizenship. The Supreme Court’s majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to almost all children born on American soil (a concept known as jus soli). The court’s dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority’s view, would have excluded “the children of foreigners, happening to be born to them while passing through the country”.
In the words of a 2007 legal analysis of events following the Wong Kim Ark decision, “The parameters of the jus soli principle, as stated by the court in Wong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts.” A 2010 review of the history of the Citizenship Clause notes that the Wong Kim Ark decision held that the guarantee of birthright citizenship “applies to children of foreigners present on American soil” and states that the Supreme Court “has not re-examined this issue since the concept of ‘illegal alien’ entered the language”. Since the 1990s, however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children of illegal immigrants, and legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally. Attempts have been made from time to time in Congress to restrict birthright citizenship, either via statutory redefinition of the term jurisdiction, or by overriding both the Wong Kim Ark ruling and the Citizenship Clause itself through an amendment to the Constitution, but no such proposal has been enacted.
Like most immigration laws that would follow in its wake, the Chinese Exclusion Act countered a large number of people’s natural desire to move in search of a better life. Its implementation, back in an era where governments were far less pervasive in our daily lives, was a challenge. As the implementation details of the law were ironed out, people eager to migrate worked out ingenious ways around the regulations. This led to the growth of more sophisticated restrictions, as we’ll discuss in a subsequent post. Many of the contours of present-day immigration enforcement, as well as the techniques used to evade and work around immigration law, can be traced back to the first few decades of the implementation of the Chinese Exclusion Act.
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