July 30, 2018

Back to the Future?

By Kevin R. Johnson

[Cross-posted in Frank Essays]

As I wrote in 2009, race and class permeate U.S. immigration law and enforcement. This taint stems in large part from the critically important roles of race and class in the formation and maintenance of the American national identity.  Immigration law reinforces and maintains that identity by determining who is admitted to the United States.  A history of exclusion of poor and working people of color from the United States reveals both how we as a nation see ourselves and our aspirations for what we want to be. 

Through aggressive immigration enforcement like that seen in no other administration in modern U.S. history, President Trump has taken race and class in immigration to the next level.  Indeed, his administration has embraced a policy akin to the infamously discriminatory Chinese exclusion laws of the late 1800s. Moreover, his attacks on Mexican immigrants, Muslims, and migrants from “s---hole countries” expressly invoke race and class of migrants as the reason for their harsh treatment.

Immigrants from Latin America

Because of their perceived negative impacts on U.S. society, Mexican and other Latino immigrants, particularly those who are undocumented, are among the most disfavored immigrants of modern times.  President Trump has made no bones about his view that Mexico does not “send their best” to the United States and has labeled Mexican immigrants as a group as criminals.  Although not mentioning “Operation Wetback” by name, President Trump has endorsed the now-discredited deportation campaign of President Eisenhower that removed hundreds of thousands of persons of Mexican ancestry from the Southwestern portion of the United States in 1954.  President Trump also has disparaged Salvadorans, tying them to members of the violent gang MS-13 who are no less than “animals” warranting the harshest of treatment. 

President Trump’s raw demonization of Latinos fits into a long history of discrimination against immigrants from Mexico and, more generally, all persons of Mexican ancestry in the United States.  The demonization is not limited to “aliens” or “illegal aliens” but today affects Latinos in this country of all immigration statuses.

Anti-Mexican sentiment, often combined with class-based bias, has long been prevalent in American social life.  Persons of Mexican ancestry are often stereotyped as little more than peasants who undercut the wage scale of “American” workers because of their willingness to work for “inhuman” wages.  The debates over the ever-expanding fence along the U.S.-Mexico border that President Trump champions and border enforcement generally, the proliferation a few years ago of state and local immigration-enforcement measures such as Arizona’s infamous S.B. 1070, and the popularity of immigration enforcement, reveal both anti-Mexican and anti-immigrant sentiment, as well as legitimate concerns with lawful immigration and immigration controls.  President Trump has fully embraced and amplified these sentiments. 

The difficulty of disentangling lawful from unlawful motivations does not change the real influence that invidious motives have in both the substance and enforcement of U.S. immigration law and policy.

An often-expressed public concern is with the magnitude of the flow of immigrants from Mexico. Some contend that the United States is being inundated – “flooded” is the word frequently employed - with poor, racially and culturally different Mexican immigrants (often referred to as “illegal aliens”) and that this flood is corrupting the national identity of the United States as well as resulting in economic and other injuries to U.S. society.  Consistent with that sentiment, President Trump has tweeted that immigrants “pour into and infest out country.” 

The alleged failure of immigrants to assimilate into American society also is a related, oft-expressed concern and is presumably what motivated the President to say that we need more immigrants from Norway than El Salvador and Haiti. 

As President Trump’s comments about immigrants suggest, recent developments reveal the unmistakable influence of race and class on immigration law and its enforcement.  Consider a few contemporary examples.

Deportations

The Obama administration deported in the neighborhood of 400,000 noncitizens a year during his first term.  Removal numbers were widely publicized.  Not widely publicized was that more than 95 percent of the persons removed were from Mexico, El Salvador, and other Latin American nations.  The harsh effectiveness of the Obama removal campaign, which devastated Latino families and communities, resulted from the U.S. government’s focus on noncitizens arrested by state and local police, with whom Latinos are disparately targeted due to racial profiling and other practices.

Announcing a “zero tolerance” policy, President Trump has sought to ramp up removals of Mexicans, Salvadorans, Hondurans, Guatemalans, and Haitians, many of whom are poor and seeking asylum in the United States.  This strategy, seen clearly in the administration’s responses to the migrant “caravan” and the Central American mothers and children in 2018, likely will continue to disproportionately affect poor and working class Latinos.

Raids

At various times in U.S. history, the U.S. government has employed raids as a device for enforcement of the immigration laws.   Employers as well as immigrants have been affected.

As Congress debated comprehensive immigration reform, the Bush administration increasingly employed immigration raids in the interior of the United States in an effort to demonstrate the federal government's commitment to immigration enforcement. 

These raids have had racial and class impacts on particular subgroups of immigrant workers, namely low-skilled Latina/o immigrants.

For example, the May 2008 raid of a meatpacking plant in Postville, Iowa, constituted one of the largest raids on undocumented workers at a single site in American history.  In the raid's aftermath, the U.S. government did not simply seek to deport the undocumented, but pursued criminal prosecutions of the workers for immigration and related crimes, such as for identity fraud.  The raid involved a massive show of force that included helicopters, buses, and vans as federal agents surrounded the Agriprocessors plant in Postville, the nation's largest kosher slaughterhouse.  According to news reports, immigration authorities arrested 290 Guatemalan, 93 Mexican, 4 Ukrainian, and 2 Israeli workers. 

President Trump has employed well-publicized workplace raids at 7-11 stores and, more recently, meatpacking and landscaping companies in Ohio.  Those raids specifically targeted workplaces of working class immigrants and Latinos.  We can expect the same types of disparate impacts on Latino working class immigrants as we have seen with past immigration raids.

Detention

Immigration detention has been in the news, with vivid pictures of desperate mothers and children who fled the rampant violence of Central America catching the national imagination.  Ending “catch and release” of noncitizens apprehended in the U.S./Mexico border region, President Trump has used a variety of policies, such as family separation and family detention, in the administration’s efforts to deter Central Americans from coming to the United States to seek asylum – relief for which the law allows them to apply.  As the pictures make clear to the world, poor and working class Latinos are the most directly affected.  Given that the policies are directed at border crossers from Central America, it cannot be denied that the U.S. government is not targeting Latinos in the enforcement efforts.   

Border Enforcement

U.S. border enforcement historically has focused on Latinos, with racial profiling a well-known phenomenon in immigration enforcement.  Immigration enforcement officers often target Latinos for immigration stops.  President Trump has ramped up enforcement in the U.S./Mexico border region, with persons who “look” Latino/o the focus of those efforts.  President Trump’s rhetoric attacking Latinos cannot help but encourage immigration officers to focus on Latinos and to ultimately remove many of them from the United States.

Legal Immigration

The immigration laws through a variety of mechanisms historically have excluded poor and working people of color and continue to do so today.  The Trump administration has sought to make it harder to immigrate lawfully to the United States.  Put differently, he wants to limit legal as well as unauthorized immigration. 

The Trump administration has tightened visa requirements and is promising to do more.   President Trump’s travel ban denies entry into the United States of nationals from a number of predominantly Muslim countries.  In addition, the President has expressed support for the Reforming American Immigration for Strong Employment (RAISE) Act, which would cut immigration by half and redirect migration away from developing nations populated by people of color, including  Mexico, India, and China, the three nations currently sending the most immigrants annually to the United States.   

Conclusion

Race and class continue to permeate U.S. Immigration law and enforcement.  This is especially true in the Trump era.  Indeed, President Trump is focusing on policies that will directly affect working class Latinos. Judging by his incendiary rhetoric attacking Latinos and poor and working people of color generally, the Trump administration seems to have targeted Latinos for immigration enforcement.  For better or worse, my 2009 article analyzing the race and class impacts of immigration enforcement is more relevant today than when I wrote it.

Kevin R. Johnson is Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis School of Law.

July 17, 2018

Eps. 24, 25: 'Taking the Fifth,' 'Justice Kennedy'

By Elizabeth Joh

Anthony M. Kennedy's announcement in late June that he was retiring from the U.S. Supreme Court merited a special edition of the podcast "What Trump Can Teach Us About Con Law." Episode 25, "Justice Kennedy," is devoted to Kennedy, the mostly conservative justice who delivered swing votes in key decisions on abortion, LGBTQ rights and affirmative action.

The special episode followed closely on the heels of episode 24, "Taking the Fifth." President Trump says it makes people look guilty. Yet he and people associated with him have done it. This episode traces the practice of pleading the Fifth back to the Cold War and the Hollywood Ten, who probably should have invoked the Fifth instead of the First Amendment.

April 29, 2016

Professor Chin to Speak at U.S. Capitol Historical Society Symposium

The U.S. Capitol Historical Society will hold its annual spring symposium, Congress and a Nation of Immigrants, 1790-1990: From the First Naturalization Act to the Simpson-Mazzoli Act, on May 5 and 6.

Professor Gabriel "Jack" Chin is among the symposium speakers who will tackle a range of topics that examine Congress and immigration law through various lenses, including race, quotas, politics, and popular culture. As speakers consider immigration law and related issues, they will detail and challenge popular perceptions of racial, ethnic, and political differences in American society from 1789 and the Alien Acts through the Simpson-Mazzoli Act in 1986.

Professor Chin will speak in in room 325 of the Russell Senate Office Building on Friday, May 6 from 10:55am to 11:40am. He will discuss the 1965 Immigration Act in a talk titled, "Was the Diversification of America an Unintended Consequence?"

This event is free and open to the public. For more information, visit http://uschs.org/news-releases/symposium-focuses-immigration-legislation/.

February 4, 2016

California Legal History: A King Hall Issue

The 2015 issue of California Legal History could easily be titled the King Hall issue. A publication of the California Supreme Court Historical Society, it is an annual journal that publishes scholarly articles and the oral histories of prominent figures of the bench and bar of California.

Here are some of the articles in the new issue:

A tribute to Hon. Joseph R. Grodin by our own Cruz Reynoso.

My contribution on "Justice Cruz Reynoso: The People's Justice."

An oral history of Cruz Reynoso.

A student symposium on three intersections of federal and California law (which I blogged about previously).

The symposium features an introduction by Professor John Oakley and contributions by Kelsey Hollander '15, Megha Bhatt '15, and Elaine Won '16!

January 15, 2016

Jack Chin to Discuss Hong Yen Chang Case in Riverside

Professor Gabriel "Jack" Chin will make a presentation on his work on the Hong Yen Chang case before the Riverside County Bar Association in May. He'll be joined by attorney Josh Meltzer of Munger Tolles and Olson LLP.

Chang, an 1886 Columbia Law School grad, was denied a license to practice in California because of laws that discriminated against Chinese immigrants. Last year, the California Supreme Court granted him posthumous admission to the bar, thanks to the efforts of Professor Chin and members of our Asian Pacific American Law Students Association (APALSA).

 

 

September 23, 2015

Things You Didn't Know about Magna Carta

The following is a lightly edited version of a short talk I gave on the 800th anniversary of Magna Carta for the September meeting of the Schwartz-Levi Inn of Court at UC Davis School of Law.

Tonight I will be discussing a few of the lesser known aspects of Magna Carta.  I'm sure you're all familiar with the broad outlines; the barons of the realm of England extracting various concessions from King John at Runnymede Field, and I won't rehearse that history in any detail.

Let's start with the words "Magna Carta."  When British Prime Minister David Cameron appeared on the David Letterman show in 2012, he admitted that he wasn't sure how to translate the Latin words Magna Carta.  But he said it with an English accent, so it didn't sound quite as stupid as it would have if an American had said it.  The basic translation, of course, is "Great Charter," but it's important to note that originally the sense of "Magna" as "Great" wasn't "great" in terms of significance but "great" in terms of size.  The document nowhere refers to itself as Magna Carta.  A clerk gave the charter this name a few years later to distinguish it from a smaller document known as the Charter of the Forest.  So the original sense of "Magna Carta/Great Charter" was more "physically big charter" than it was "significant charter."

If we were to go back in time and ask Englishmen in the 17th century when Magna Carta was signed, they would have said 1225.  This year, 2015, would be the 790th anniversary of Magna Carta, according to them.  And the monarch who signed Magna Carta was Henry III, not John.  This seems to be a rather significant discrepancy.

What explains it?  Well, King John immediately asked the pope to declare Magna Carta invalid because he signed under duress, and the pope did so.  After John's unexpected death in 1216, the document was re-issued under the name of John's son, the new boy king Henry III, and it was re-issued again in 1225, when Henry III had reached his majority.  It was this document, with significant deletions from the original, that later generations celebrated as Magna Carta, and in many ways appropriately so, because this was the only document that was of continued legal significance.  The 1215 document was invalid.  Only much more recently have we given more attention to 1215, King John, and the original text.

The text of Magna Carta contains numerous promises from the king to his barons and subjects.  Promises from kings to subjects are great, of course, but the real issue is enforcement.  Magna Carta had a solution, but it wasn't a particularly good one.  It provided for 25 barons to serve as enforcers of Magna Carta against the king.  If the king violated the provisions, the barons "shall distress and injure us in all ways possible - namely, by capturing our castles, lands and possessions and in all ways that they can."  As Harvard Law professor Larry Tribe has argued, "for all that we justly celebrate Magna Carta as the well-spring of the rule of law, its carefully wrought mechanism for legally restraining abuse of royal power was nothing more than institutionalized civil war.  Nothing could more strikingly illustrate the theoretical and practical difficulty of reining in the power of him who reigns."  This provision was not included in the re-issue under the Henry III, and it would take many more centuries before better answers to this problem, other than simply attacking the king, were formulated.

Magna Carta has become far more a symbol of constitutionalism than it ever was originally.  Generations of English and American lawyers have cited it to courts in support of personal liberties.  Indeed, the citations became so frequent that many English courts simply grew frustrated.  Chief Justice Roberts noted recently that if a lawyer is citing Magna Carta, he is probably losing.  This has been true for a while.  In the seventeenth century, a juror complained about the then typical practice of judges fining jurors for verdicts with which the judges disagreed.  When the juror cited Magna Carta, the judge responded, "Magna Carta, Magna Farta."  I challenge anyone to distinguish adverse precedent more concisely.                      

Today is California Admission Day, and the organizers of this program have asked me to connect California's admission to the Union in 1850 to Magna Carta of 1215.  This is not an especially easy task, but here's my best effort.  California's admission was signed into law by President Millard Fillmore.  But Fillmore was not supposed to be president.  He ascended to the presidency when President Zachary Taylor died unexpectedly, under mysterious circumstances, just two months earlier.  President Taylor, in February 1850, had approved the proposed California constitution, concluding that it was republican in form.  And here's the connection.  Zachary Taylor was a direct descendant of King John.  And he's not the only American president who is a direct descendant of King John.  So were Presidents Washington, Jefferson, Madison, John Quincy Adams, both Harrisons, Cleveland, both Roosevelts, Coolidge, Hoover, Nixon, Ford, both Bushes, and Obama.  Three of the four Presidents on Mount Rushmore are grandchildren, many times over, of King John.  So America owes a lot to the loins of King John.

And of course we all know King John was a bad king.  We don't call him John I, but simply John, because he so thoroughly soiled the name that no subsequent English monarch ever adopted it.  It is tempting to speculate that he is the source of our expression "going to the john," but, sadly, I have no evidence to back that up.  But we shouldn't completely dismiss him.  If John had been a model king, there would have been no Magna Carta.  Similarly, if James II had been a good king, there would have been no English Bill of Rights.  And if George III had behaved appropriately, there would have been no American Declaration of Independence or U.S. Constitution.  It brings to mind the old problem in Christian theology about the nature of Judas; without Judas's betrayal of Christ, there would have been no crucifixion and no resurrection.  So shouldn't Judas get at least some credit?  So too, perhaps, with these bad kings.  For every twenty toasts to Magna Carta, we should perhaps raise one to King John, even if he would have privately complained about being forced to sign a "Magna Farta."

 

September 17, 2014

Happy Birthday to our Flexible, Popular Constitution

Cross-posted from ACSblog.

Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by "we the people of the United States" for "ourselves and our posterity." The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to "free white persons"). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers' posterity trod the earth. 

Somehow, though, the Constitution remains popular. Although almost nothing in the Constitution has been expressly repealed, with the exception of Prohibition, exclusionary provisions are reimagined as inclusive, or imagined away. The implications of later Amendments and even court decisions flow backwards in time to change the meaning of words, or eliminate them entirely.  

The point is not about how courts should interpret the Constitution, but that as the composition of the People have changed, so too has their conception of the Constitution and what it means.  In practice, among Americans, the meaning of the document itself changes and grows to accommodate changes in life and politics.  Jefferson famously proposed that "Every constitution . . . , and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right."  Jefferson might be correct, and yet the People seem to be creating and recreating the new Constitution they want using the words in the one that is already there.