Delegating Racial Animus to Presidents: White Workers, Migrants, and Heightened Scrutiny

Dear Blog Readers:

I invite you to read and comment critically on the following. It's the introduction to my next research paper. It's still months away from completion. In particular: How clear is this opening presentation? Is it persuasive, or unclear, or off-putting? Your feedback is welcome! Post to FB or email me at mhl@illinois.edu. I am interested in candor, not pats on the back. Thank you in advance.  Sincerely, Michael

Delegating Racial Animus to Presidents:

White Workers, Migrants, and Heightened Scrutiny

A president directs border agents to administer an English literacy test to workers with employment visas. Separately, in response to tensions with China, he orders border agents to deny entry to Chinese visa-holders in STEM-field jobs. In addition, based on recent data showing that the U.S. admitted nearly equal numbers of workers from the Dominican Republic (7,602) and Norway (7,502), he orders immigration officials to reduce admissions from the island nation to 100 persons on grounds that Caribbean islanders are inferior to northern Europeans.  These are not actions taken by President Donald Trump. These are— with minor alterations— U.S. immigration policies from the past. Federal courts upheld these immigration restrictions, looking past clear evidence of racial animus. Those decisions remain valid precedents.

Courts should not blindly follow these "plenary power" precedents when racial animus motivates presidential actions. Nonetheless, these cases treat a president’s power over immigration as unreviewable or entitled to extraordinary deference. This approach has drawn from the nature of executive power in Article II of the Constitution, common law traditions of monarchs as embodiments of sovereignty, delegation of powers from Congress, and the accumulation of precedent.

But such high deference can be taken to extremes— for example, by allowing the internment of more than 100,000 Japanese Americans and resident aliens in U.S. concentration camps; sentencing resident Chinese workers to hard labor without a habeas corpus court hearing because they could not produce a white witness to testify to their residency; and excluding an Indian Hindu simply because he was not a white person. Judicial deference has ignored the possibility that certain immigration policies and actions are official expressions of bigotry and white supremacy.

I do not make these charges lightly but point to the fact that eleven presidents used executive orders and treaty powers to segregate indigenous people on reservations, eight presidents owned slaves while in office, occasionally using their Article II powers to explore the deportation of these migrant laborers to Africa, two presidents published widely in the eugenics movement, with one openly writing on “race suicide” for whites in America, one president used his powers to deny citizenship rights, enacted by Congress, to former black slaves, another president used an executive order to forcibly relocate and detain an entire nationality group—and more recently, a president’s legitimacy was attacked because of the sinister immigration lie that he was born in Kenya.

Current immigration jurisprudence is indifferent, if not blind, to the idea that executive power over immigration mingles occasionally with racial animus. I contend that whether Congress delegates its racial animus in matters of immigration, or a president acts on his own racial animus, courts should apply heightened scrutiny to actions that detain, restrict, remove, exclude, criminally punish without a trial, or incarcerate immigrants en masse. I present exhaustive evidence that white workers, acting on their racially defined interests, were—and are again— the main source of animus underlying restrictive, exclusionary, and punitive immigration measures taken by presidents against migrants of color and racially impure whites.