The cliché that America is a “nation of immigrants” is true as successive waves of immigrants throughout its history came to this country for its freedoms and opportunity.  The Statue of Liberty symbolically welcomes immigrants to America.  Over the past 150 years, American immigration policy has alternated between restriction and liberalization.  But, whatever vacillating nature of immigration laws, the unifying core was that constitutionalism generally guided the process of laws regarding immigration.

In the late nineteenth and early twentieth centuries, immigrants flooded America, especially the tens of millions from southeastern Europe, but also from Asia and Mexico.  Xenophobia and nativism increased, and many native-born Americans sought to restrict immigration.  The result was the 1882 Chinese Exclusion Act, which restricted all immigration from China; literacy tests, which finally passed during World War I when President Woodrow Wilson signed the bill unlike his predecessors who vetoed them; and the 1924 National Origins Act, which significantly reduced immigration by instituting quotas based on the 1890 Census before large numbers of southeastern Europeans arrived.  These acts were discriminatory, but they followed ordinary constitutional processes.

The 1960s saw a liberalization of immigration laws.  In 1965, Congress passed, and President Lyndon Johnson signed, the Immigration Act.  The new law abolished the forty-year-old quota system and made immigration much easier by allowing people already in the United States to bring family members to the country.  President Johnson strongly favored the measure but not even the very liberal author of the Great Society sought to act unilaterally.

During the 1980s, several million illegal immigrants came from Mexico which prompted calls for immigration reform.  In 1986, President Ronald Reagan signed the Immigration Reform and Control Act which granted legal residence to all illegal immigrants living in the country as of 1982.  A 1990 Immigration Act expanded the 1965 law and increased the numbers of immigrants allowed into the United States legally.  The nature and consequences of illegal immigration led to a contentious debate throughout these decades, but responses were rooted in the rule of law whether or not they satisfied one constituency or another.

The debate over illegal immigration to America heated up in the 2000s.  Conservatives railed against the problem of illegal immigration and argued that many reforms were “amnesty.”  Liberals on the other hand pressed for reform that would make illegal immigrants citizens.  Congress attempted to pass a “path to citizenship” several times, but it has still not passed.  President Barack Obama, however, has decided to take action on his own to reform immigration.

In 2012, President Obama signed an executive “directive” stating that young illegals would not be deported.  In November, 2014, he signed an executive order that granted a reprieve from deportation to nearly half of the estimated 11 million illegal immigrants in the country to the great outrage of Republicans and dozens of states who sued the administration.  So far, a federal district and appellate court have ruled the last executive order to be unconstitutional and blocked it.

Executive orders themselves are perfectly legal for a president to issue, and thousands have been signed.  Moreover, some other presidents have taken action on immigration on their own without congressional approval, most notably Progressive President Theodore Roosevelt who made a “gentlemen’s agreement” with Japan to restrict immigration from that country.  However, there is significant reaction against President Obama’s executive orders because many Americans believe that the people’s representatives should have a say in this important issue and preserve the system of checks and balances rather than leave the decision up to one person.

A few years ago, President Obama said, “We’re not just going to be waiting for legislation . . . I’ve got a pen . . . . And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.”  If there is an example of executive overreach that endangers constitutional principles as typified by this statement, President Obama’s actions on immigration is one.

Tony Williams is the author of five books including Washington and Hamilton: The Alliance that Forged America

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3 replies
  1. Barbara Opitz
    Barbara Opitz says:

    Well written and appreciated. Facts are facts. What I’d personally like to know is this: Why is it so important to give amnesty to the people who violated our laws by coming here ILLEGALLY? I want to know who is benefiting and how they’re benefiting by the passage of amnesty. (I say that because our country does nothing unless somebody’s pockets are being lined. When I look at that situation, I see excessive spending to feed, house, clothe, and to provide education and health care. Our country is already in debt up to the wazoo! Is it unreasonable of me or any citizen of this nation to have serious questions regarding the obvious overtake of our constitutionally run society by those in the lower echelon of modernization or whatever word you choose to use? Another question: What do we owe Mexico to allow amnesty at the obviously huge debt it will take to accomplish this?

  2. Michael Finch
    Michael Finch says:

    I can’t help but wonder why it is that if we disagree with the script that is handed out to us when we arrive on scene, then some how we are hateful, bad people. All of us are immigrants. All of us came from somewhere else. I am part Cherokee, but you know what, my people on that side came from somewhere else as well. We are all Americans, and this nation has done an incredible job of welcoming new comers, all things considered. But to not have an enforced border is to be irresponsible to your neighbors that are also watching out for your well being.

  3. Ralph Howarth
    Ralph Howarth says:

    The rhetoric has been that the administration should not break up families, and that immigrants boost the economy. It is desirable not to break up families, and self-selected immigrants have historically been a boon to the economy. But immigration is no cure-all or answer-all solution looking for a problem. One question is: if immigrants are such a boon to economies, then how come they were not a boon in the country they come from? And does not leaving your family for another country inordinately break up a family? These are points that are missed rather craftily in the immigration rhetoric.

    The present Obama Admin amnesty policy, now ruled unconstitutional in federal courts, has caused a stir because the prosecutorial discretion not to prosecute someone has been turned on its head to include social security and legalized status without consent of Congress. Earlier, the Obama Admin unilaterally moved forward the Dreamer program that pegged qualification of child immigrants by an arbitrary year and the age of 15. Of course, immigrants complain that the age threshold is discriminatory. Of course it is discriminatory. It is the very nature of law to discriminate between who the law applies to and who it does not, often be the actions and choices taken by the individual or a family member. At what age then is the policy not discriminatory? 18? 21? Is 50 OK? After all, are we not all children of the human race and so child immigrants to somewhere? Rhetoric can always be stretched to reach some aims. Every time a policy is amended to make exceptions or seemingly solve a problem, it creates another problem to where the new policy is discriminatory in a new way moving the goal posts down field.


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