By Michelle Lazaran, J.D. Class of 2024
Throughout the history of the United States, immigration has reflected the political and historical viewpoints of those in power. Immigration is a critical part of the United States’ landscape by affecting almost every citizen and fueling the modern economy. The U.S. is frequently called the “Nation of Immigrants,” because the U.S. has the largest global immigrant population with over 50.6 million immigrants.1 Moreover, immigrants are critical to the nation for humanitarian efforts and crises, personal relationships to U.S. citizens and U.S. international relations, and increasing the “productive capacity of the economy.”2
Early History and Discriminatory Laws
In the early history of the United States, the legislature passed a 1790 Naturalization Act that imposed limits favoring white people and excluding all non-white people from naturalizing.3 In 1798, Congress passed the Alien Sedition Act that authorized the deportation of immigrants who were perceived to be engaging in activity against the U.S. government and the Alien Enemies Act that imprisoned or deported non-citizen individuals at times of war.4 Congress passed both the Homestead Act of 1862 and the Act to Encourage Immigration of 1864 during President Lincoln’s administration.5 These Acts allowed immigrants to naturalize in five years if they were willing to develop land and addressed labor shortages by employing and recruiting foreign workers.6 Following the conclusion of the Civil War, Congress amended naturalization to include individuals of African descent.7 In 1875, Congress enacted another restrictive immigration statute by prohibiting immigrants with criminal backgrounds and “made contracting forced Asian laborers a felony.”8
In 1882, Congress suspended immigration of Chinese laborers for ten years and required individuals to provide certificates of residence to facilitate reentry, while authorizing deportation of Chinese immigrants without proper documentation.9 A few years later, the Scott Act prohibited the immigration of all Chinese laborers and did not allow reentry into the United States, even with a certificate of residence.10 In 1891, the list of immigrants excluded from the country was expanded to include anyone with diseases or engaged in polygamy.11 Notably, this Immigration Act made it a misdemeanor to aid or bring an unauthorized individual into the country.12 As time passed, Congress added the Anarchist Exclusion Act banning anarchists, beggars, and anyone working in the prostitution industry.13 The 1917 Immigration Act banned individuals from most Asian countries, except the Philippines and Japan, from immigrating into the U.S., while also adding reading and age requirements to immigration.14 Congress capped immigration to 350,000 in 1921 and further restricted quotas to 165,000 in 1924.15
It was not until 1943 that Congress finally repealed the Chinese Exclusion Act.16 Moreover, it was not until 1952 that race was formally removed as an exclusion for immigration and naturalization.17 Throughout the 1900s, the U.S. passed a variety of acts that allowed for refugee immigration, created seven-category preference immigration system, increased annual immigration caps, and created new categories of employment visas.18
Modern Immigration Policies
Following September 11, 2001, the Patriot Act expanded the federal government’s deportation powers and allowed the detention of undocumented immigrants without due process requirements.19 Congress also consolidated and transferred almost all functions of immigration to the Department of Homeland Security.20
The Obama, Trump, and Biden administrations all demonstrated the swinging pendulum that politics can play on immigration by prioritizing differing categories and functions of immigration. Former President Obama focused on undocumented immigrants who posed a potential threat to security or public safety, who recently entered the U.S. unlawfully, and who obstructed federal immigration controls.21 Moreover, President Obama prioritized allowing prosecutorial discretion to be regularly exercised when considering the individual’s ties to the community, current life within the U.S., any military status, length of time within the U.S., and any family connections to citizens.22 As demonstrated through his Deferred Action for Childhood Arrivals (DACA) policy, the Obama administration endeavored to focus on those that they believed could pose a risk to the nation, rather than anyone with longstanding ties to the country.
In contrast, the Trump administration believed that any undocumented immigrant should be a priority and apprehended, as demonstrated through his 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.”23 All categories of immigrants were weighed equally, rather than the Obama’s administration tiered categories.24 Additionally, the Trump administration did not utilize prosecutorial discretion and instead issued a memorandum foreswearing its use.25 Once the Biden administration took office, President Biden issued an executive order revoking the Trump administration executive order and paused over 100 deportations.26 President Biden follows more closely to President Obama by prioritizing tiered immigration concern and allowing prosecutorial discretion.27 The Biden administration focuses on immigrations who might threaten national security, border security, or public safety.28
Overall, these three recent administrations, demonstrate the control that policies have over immigration. With the upcoming 2024 election, immigration policies are a hot topic of debate and at risk for serious alternations depending on the party that gains power.
[1] World Population Review, Immigration by Country 2024 (2024) https://worldpopulationreview.com/country-rankings/immigration-by-country.
[2] Pia Orrenius, Benefits of Immigration Outweigh the Costs, George W. Bush Institute (2016) https://www.bushcenter.org/catalyst/north-american-century/benefits-of-immigration-outweigh-costs#:~:text=Why%20we%20need%20immigration,so%20do%20those%20of%20natives.
[3] D’vera Cohn, How U.S. Immigration Laws and Rules have Changed Through History, Pew Research Center (Sept. 30, 2015) https://www.pewresearch.org/short-reads/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/.
[4] Id.
[5] Andrew M. Baxter & Alex Nowrasteh, A Brief History of U.S. Immigration Policy from the Colonial Period to the Present Day, CATO Institute (Aug. 3, 2021) https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day.
[6] Id.
[7] Id.
[8] D’vera Cohn, supra note 3.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] D’vera Cohn, supra note 3.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Andrew M. Baxter & Alex Nowrasteh, supra note 5.
[20] Id.
[21] Comparison of the Obama, Trump, and Boden Administration Immigration Enforcement Priorities, Law Enforcement Immigration Task Force (Apr. 22, 2021) https://leitf.org/2021/04/enforcement-priorities/.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Comparison of the Obama, Trump, and Boden Administration Immigration Enforcement Priorities, supra note 21.
[28] Id.
William & Mary Law School Immigration Clinic Blog 