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Border Controls

The Racist Origins of America’s Broken Immigration System

How a little-known, century-old law perpetuated the odious notion that certain types of immigrants degrade our nation’s character

As radical as the contemporary GOP has become in recent years, it remains generally verboten in mainstream circles to openly call for murder. At least, for all but one demographic: migrants, whom Texas Governor Greg Abbott earlier this year lamented he couldn’t order killed. At best, party officials might argue that they are disease-ridden freeloaders; at worst, that they’re a demographic ticking time bomb engineered to wipe out real, white America.

This rhetoric has often been mistaken as a new turn for American political discourse, but it’s more of a return to an earlier era, one cemented by a law signed a century ago this month by Calvin Coolidge: the Immigration Act of 1924, known as Johnson-Reed after its House and Senate sponsors.

In a 2015 interview with right-wing operator Stephen Bannon, then–Alabama Senator Jeff Sessions spoke glowingly of the era set off by this bill that most listeners, and most Americans writ large, were probably unfamiliar with. In his languid drawl, Sessions described an era that “created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

What this meant, in practical terms, was a system geared toward prioritizing the immigration of white Northern Europeans in direct response to the heyday of Southern European immigration at the turn of the century. This was accomplished through a national immigration quota of only 2 percent of any given country’s immigrant population in the United States as of the 1890 census—right before recent waves of European arrivals—and effectively banned Asian immigration entirely. In doing so, the law codified ethnic preferences, and it was soon bolstered by the newly created Border Patrol. In effect, the United States of 1890 was the one that was to remain, untainted by the now-romanticized steamships at Ellis Island.

Two years after this interview, Sessions became Donald Trump’s first attorney general, making him the de facto top appellate decision-maker of the immigration court system. There, he leveraged a little-used review power to remake immigration courts in his restrictionist image, as one of several Trump-era immigration policy hawks who looked to the lessons of a century ago to guide their thinking. Among them was Stephen Miller, the administration’s chief architect of anti-immigrant filth and a onetime communications director for Sessions; in leaked emails of his 2015 communications with right-wing journalists, Miller references the law repeatedly, at one point writing that they should “remind people about the heritage established by Calvin Coolidge.”

Insofar as the general public knows anything at all about immigration policy, it’s probably relatively recent legal efforts: this year’s Senate border deal, or longtime efforts to protect people brought illegally to the country as children. Maybe they’re aware of the 1986 amnesty signed by Reagan, or the significant expansion of detention and deportation enacted under Clinton 10 years later.

Yet the fundamental template for how immigration policy is written, communicated about, and implemented, how it’s discussed in Congress and exists conceptually in the minds of lawmakers and voters alike, traces back to Johnson-Reed. “In a huge amount of the basic structure of immigration law and policy and the debate over it, you can see 1924 as a central inflection point for that,” said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the UCLA School of Law.

It was born out of the maturation of the openly racist eugenics movement, which emphasized now-debunked theories around increasing the quality of humans by ensuring the preservation of genetic desirability. Representative Albert Johnson, the legislation’s House sponsor, once appointed an “expert eugenics agent” to the House Committee on Immigration and Naturalization, which he chaired. In justifying his legislation, he fretted that “our capacity to maintain our cherished institutions stands diluted by a stream of alien blood.” A hundred years later, Donald Trump would make headlines for doubling down on his assertion that immigrants were “poisoning the blood of our country.”

Johnson-Reed updated a law from three years earlier that set similar quotas at 3 percent of any nation’s 1910 census population. The 20-year change in cutoff was debated extensively in the run-up to Johnson-Reed’s passage, and the 1890 adjustment won out for a simple reason. “The Emergency Quota Act was not strict enough from a nativist perspective,” said UC Berkeley historian and author Hidetaka Hirota. There was still too much room for “Italians, Jews, Greeks, Slavs, those European immigrants considered inferior, weaker stock.”

The quota system would eventually be repealed in 1965 with the passage of the second Immigration and Nationality Act, one of the final and less heralded triumphs of the civil rights movement. The act still forms the basis of our current immigration system. Yet Johnson-Reed left its residue, a lingering conviction that a bad stock of immigrants would be a cultural and political poison pill decaying the exceptional character of an ascendant United States.

“Legend has it that the way [Lyndon] Johnson, a pretty effective arm-twister, sold it to the liberal Democrats [was] that it was consistent with civil rights, eliminating discriminatory provisions,” said Paul Wickham Schmidt, a professor at Georgetown Law and a former chief appellate immigration judge who began working in the Immigration and Naturalization Service in the 1970s before becoming the agency’s acting general counsel. “Meanwhile, he told Southern and Western Democrats: Don’t worry, this really isn’t going to change anything. Who can apply for family-based [immigration] except people whose families are already here? And those are all our white, European, longtime ancestors.”

If its residue grew lighter over the intervening years, it’s reemerged today in the so-called great replacement theory. The right-wing concern that unimpeded immigration is engineered to diminish and eventually supplant white political and social power has conclusively moved from a whisper at the edges of the insurgent alt-right to practically become GOP doctrine.

Johnson-Reed also helped usher in the lasting phenomenon of policy contorting itself to satisfy the twin imperatives of keeping undesirables out while extracting their labor. Despite some strong anti-Mexican sentiment on the House and Senate floor, “those nativist sentiments, those racist voices, were ultimately [overridden] because of the more predominant demand, stronger demand for Mexican labor,” said Hirota. “It really established this idea that the Mexicans were not desirable as people, as members of society in the United States, but the country needed the labor. So that’s a compromise.”

Much like the Chinese immigrants who built the transcontinental railroad and then found themselves the target of heavy-handed restrictions once the labor had been completed, Mexican workers who entered post-1924 to prop up massive agricultural and industrial demand for labor would soon bear the brunt of the backlash. The Bracero Program of the 1940s, ’50s, and ’60s all but guaranteed exploitation. As the population of Mexican immigrants increased, Dwight Eisenhower instituted the notorious Operation Wetback, which led to at least hundreds of thousands of deportations, including those of U.S. citizens (and which Trump reportedly views as a template).

That operation was conducted by the Border Patrol, which was created shortly after Johnson-Reed to actually ensure that this system of racialized preferences and controlled migrant labor was enforced. In the century since, the force has grown in size and authority to eventually become a large paramilitary organization with some 20,000 officers and—factoring in its parent agency, Customs and Border Protection—an arsenal that includes predator drones and sophisticated surveillance tools. CBP and the Border Patrol have been the frontline executors of both Trump- and Biden-era asylum restrictions, which are facilitated by the immigration system’s relative insularity within the federal government.

That walling off is also to some extent a product of Johnson-Reed, according to Schmidt, who also worked on the aftermath of the 1980 Refugee Act and Reagan’s 1986 amnesty and would eventually chair the Board of Immigration Appeals in the 1990s, acting as the overseer of the immigration courts’ appellate branch. Schmidt sees the law’s staying power in not only the legal realm but the conceptualization of immigration as a separate animal with different due process standards, including in the very court system he once presided over. “That’s still one of the arguments that opponents of an Article I independent court system make: This is too sensitive, controversial, and tied in with national security and other policies to allow it to just be treated by mere judges,” Schmidt said. “You need politicos in there who can make sure nobody’s giving away the store.”

By the early twentieth century, the group of so-called Chinese Exclusion cases put the final nail in the coffin of state-based attempts to regulate immigration by recognizing Congress’s implicit plenary power to do so and the president’s role in enforcement. (Incidentally, the current Supreme Court opened that firmly closed door in March by allowing Texas to move forward with a law essentially establishing a state immigration enforcement system.)

Johnson-Reed sketched out, for the first time, a formal immigration superstructure with components that are recognizable today—immigration visas to be issued abroad and screened on arrival; expanded deportation powers; and, of course, a militarized Border Patrol to be the government’s muscle—and put that superstructure in its own due process and constitutional category.

“You’ll find that in both constitutional law and administrative law, there are the rules, and then there’s immigration, which is sort of its own thing, where things that you couldn’t do in administrative law happen all the time,” said Schmidt. “You’d probably have a due process problem if you treated people in traffic court or misdemeanor court the way we treat asylum-seekers in immigration court.”

Unlike the earlier Chinese Exclusion Act, whose national-origin and race-based aims were made explicit in its title and language, Johnson-Reed does not specifically establish new national or race exclusions. “It really suspended all Asian immigration without using actual racial language. The key phrase is, ‘those ineligible to citizenship’ could not enter the United States. But then, if you look at the naturalization law, those who were not eligible for naturalization were Asians,” said Hirota. This skirting right to the edge of making racial intent clear without stepping over the line has become a feature of policymaking around immigration, perhaps best exemplified by Trump’s so-called Muslim ban.

Despite Trump’s repeated and explicit promises to target Muslim immigration on the campaign trail, the Supreme Court ruled 5–4 in 2018’s Trump v. Hawaii that the third version of the policy—which functionally suspended immigration from Iran, Libya, Somalia, Syria, Yemen, and North Korea, with some restrictions on Venezuela thrown in to further muddy the waters—was not unconstitutional, because it did not specifically target Muslims in its text. “What they said is, basically: We’ll make a standard of review which is so preposterous that we can actually close our eyes to the like thousand statements that Trump made before and during and after the campaign,” said Arulanantham. “What they’ve done is they’ve made it basically impossible to challenge anyone unless they wrote in the executive order, ‘We hate Muslims,’ basically.”

He and others saw pangs of Johnson-Reed’s staying power in the disparate treatment of Ukrainians fleeing Russia’s 2022 invasion. Within weeks, the Biden administration had directed border authorities to consider exempting Ukrainians from the still active Title 42 expulsion program, even as thousands of Venezuelans and others were turned away, and quickly instituted a specialized program as Afghan refugees, left behind by America’s messy withdrawal, floundered. “Biden is, I would say, an accomplice. He may not be so vocal as Trump, but essentially he inherited the whole system, and he continued the whole system and the policy. He hasn’t really actively opposed anti-immigrant or nativist policies,” said Hirota.

“The only large group of Europeans who have tried to get in [recently] were Ukrainians, and they weren’t the ones who were living under bridges, stuck for years waiting for [the] CBP One [app] to work a miracle of miracles. They figured out a way to get the Ukrainians in fairly quickly. That shows that the system could work if there were really motivation to make it work,” said Schmidt, referencing the system for migrants to navigate Biden’s reinstatement last year of a Trump-era asylum restriction policy. Now, the president is reportedly considering heavy-handed executive actions to restrict new arrivals.

“Those of us that sort of thought the ’24 act was in the rearview mirror, you know, I think we’ve been proven wrong,” the former immigration judge added.