Tag Archives: Immigration Act of 1882

How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

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.

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US immigrant processing: funded by user fees since 1882

The first piece of US federal legislation detailing procedures for immigration enforcement was the Immigration Act of 1882 (passed at about the same time as, though distinct from, the Chinese Exclusion 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, unlike most other government agencies, continues to be true today. For instance, Wikipedia says:

Unlike most other federal agencies, USCIS is funded almost entirely by user fees. Under President George W. Bush’s FY2008 budget request, direct congressional appropriations made about 1% of the USCIS budget and about 99% of the budget was funded through fees. The total USCIS FY2008 budget was projected to be $2.6 billion.

This is true not only of the USCIS as a whole but also of incremental programs. For instance, co-blogger Michelangelo notes that Deferred Action for Childhood Arrivals (DACA), announced by Barack Obama in June 2012, is funded by user fees:

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

Similarly, when, after September 11, 2001, people on student and exchange visitor visas were required to go through a criminal background check in order to be able to get a visa (the so-called “SEVIS record”) that cost was also “user-financed” — recipients had to pay $100 in order to have a background check run on them.

Angelo Paparelli notes that Obama’s November 2014 deferred action proposals would also be financed by user fees:

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees.

It should be noted that the “funded by user fees” applies specifically to the USCIS, the branch of immigration enforcement that deals specifically with processing immigrant applications, and not to the other branches of immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE and CBP, focused as they are on interior and border enforcement of immigration and customs laws, don’t really have “customers” — and they cost the taxpayers a decent chunk of money (though still chump change relative to the overall US federal budget). [The SEVIS fee alluded to above is an exception, since the Student and Exchange Visitor Program is managed by ICE rather than USCIS. It is somewhat of an exception to the general rule that status processing is managed by USCIS.] Here are the approximate budgets:

  • USCIS: About $3.2 billion, about 99% funded by user fees.
  • ICE: About $5.3 billion, negligible user fees funding.
  • CBP: About $12.9 billion, negligible user fees funding.

These numbers suggest that liberalizing migration, raising user fees somewhat (cf. immigration tariffs), and cutting down on some enforcement functions would probably lead to significant budgetary savings in the short run. However, all these numbers are small relative to the lifetime economic or fiscal effects of immigrants (even though the signs of the fiscal effects are much disputed, their magnitudes are likely to be at least one order of magnitude greater). This is one reason why “save the costs of border enforcement” is not an argument made prominently on this site or by open borders advocates in general. But in the narrowest sense, the fiscal cost of immigration enforcement arises not from immigrants (who seem to be bearing their share of the burden) but on those who seek to keep them out.

Some might object that illegal immigrants don’t pay any user fees. This is technically true, but they pay amounts that are far greater in fees to human smugglers. And when given the opportunity to regularize their status by paying user fees, as happened with DACA, many avail of the opportunity. Those who don’t are deterred not so much by the cost as by the uncertainty of whether registering themselves with the federal government might endanger them.

PS: See this Open Borders Action Group post where the relative costs of the immigration enforcement agencies and their extent of user funding are discussed.