Immigration Laws Are A Constant Work In Progress

By Peggy Sands Orchowski

Yesterday May 17 President Trump introduced his immigration plan. It focused on changing immigration laws to prioritize granting green cards (ie permanent legal residency permits) to those applicants who get the highest number of points in a merit-based application process similar to the one in Canada.  The idea was imbedded in the bipartisan Senate Comprehensive Immigration bill of 2013.  It replaces the present priority of giving the majority of green cards to extended family members of naturalized or birthrights citizens, as established in the 1965 Immigration and Nationality Act.

The 1965 INA law aka the Hart/Cellars Act was the most liberal immigration law in the world.  It opened immigration to every nationality without discrimination.  It became the gold standard for immigration activists throughout the world.

The INA was driven by two highly significant events at the time:  the end of World War II which displaced millions of families in Europe and revealed the horrific revelations about the Holocaust in which millions of Jews, Catholics and others were murdered.

The INA was also driven by the civil rights movement than resulted in passage of the Civil Rights Act of 1964 prohibiting discrimination based on race, religion, creed or national origin.  In 1965 the INA reflected both of these momentous societal happenings by replacing the now unconstitutional 1923 immigration laws known as the National Origins Quota Act.  Now no applicant was to be favored or discriminated again because of their nationality.  All nationalities had to be treated equally.  The INA also established a priority for green cards to go to family reunification as well as greatly raised the number of refugees (mainly Jewish) that were allowed to settle permanently in the United States.

In effect, the priority for immigrant acceptance into the United States changed dramatically from the traditional one of work skills, to one of social justice.  Cellars' success in 1947 to change the committee jurisdiction for immigration laws from the labor committee to the judiciary committee preceded and set the tone for this philosophical change.

The INA literally changed the face of America – the title of my book published in 2015 on the 50^th anniversary of its signing.  It has been tweeked and amended over the years but its basic precepts for legal immigration has remained the same: family unification and no discrimination (meaning also no preferences) based on national origin.  The poem on the statue of liberty to welcome the tired masses yearning to be free, became a mantra for the new immigration policy.

Both of those precepts can now be said to be obsolete not only due to time and success but to changing demographics, politics and calamity.

The terrorist attack of 9/11 changed the entire focus of immigration to national security.

That was a big change for President Bush. During his presidential campaign of 2000 he often stated that any migrant that can get a job in the U.S., should get a visa.  But in 2001 Bush suddenly discovered that millions of immigrants and foreign students in the United States were unknown, untracked and undocumented.

So Bush created the Department of Homeland Security and put all border enforcement and immigration services there.  He broke up the Immigration and Naturalization Services that had existed since the 1880s.  It had become almost dysfunctional in trying to manage its two conflicting roles -- services to immigrants wanting to naturalize and enforcement of immigration laws.  In 2004 it was made into two bureaus: Citizenship and Immigration Services (CIS) and Immigration and Customs Enforcement (ICE) -- the first agency in the U.S. ever to be charged with interior enforcement.

By 2019 the conflict between the two bureaus' roles have become highly political. Democratic leaders tend to favor more unrestricted immigration with little if any interior enforcement; they have even called for the dissolution of ICE.   Republican leaders mostly believe the exact opposite.  

At the same time technology also has been changing the reasons for immigration.  Does the U.S. today really need to be the only country in the world that prioritize the entry of an entire extended family?  In the quaint old days an immigrant to the U.S.  might never see again; but now immigrants can and do skype and send money to family members in the homeland everyday.  Today many immigrants have multiple passports and consider themselves to be global citizens

Should immigration restrictions still be based on every nation state having an equal number to avoid the appearance of national preferences and quotas?  Today desired potential immigrants with high education and skills came predominantly from countries like India and China. Eighty percent of DREAMERS came from Mexico giving them an unfair advantage.  What about immigrants with multiple nationalities or multiple wives?

Inevitably changes in new immigration laws for legal immigrants will address modern technology and demographics. Like having immigration priorities based on high work skills and knowledge of English rather than on family unification.

Immigration laws are a constant work in progress. They are not written in stone like the poem on the statue of liberty.  And while everyone gets to have input live the President of the United States, in the end it is Congress who decides and makes the law. The President has to enforce it and the Supreme Court gets to adjudicate it for its constitutionality if and when that comes up.

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