Mass Deportation of the Undocumented: A Terrible, Failed Idea That Trampled Due Process – posted 9/20/2015 and published in the Concord Monitor on 9/25/2015
This piece appeared in the Concord Monitor on 9/25/2015 under the title “Dearly Deported”.
In his platform and in his speeches, Donald Trump includes the idea of deporting the eleven million undocumented people in the United States. At a recent rally in Dallas, he described the undocumented immigrants as part of a “dumping ground for the rest of the world”. He has said the majority of undocumented immigrants are criminals and violent gang members. Since Trump is the current GOP frontrunner and since polls show the idea of mass deportations is popular among Republicans, I think his idea deserves serious scrutiny.
Trump has said that as president he would deport all undocumented immigrants and then allow the “good ones” to reenter the country through an expedited process. He has said the “good ones” could live in the United States although not as citizens. Trump has not yet said how he would locate, round up, and deport the eleven million immigrants he believes must be deported. He has said it would only take eighteen months to two years to get the job done.
Trump has also said that the U.S. born children of illegal immigrants also must go. Under current law, these children are considered legal citizens.
The journalist, Jorge Ramos, has pointed out that Trump would need to deport 458, 333 immigrants per month or 15, 277 people per day to complete his plan in the projected time period. Ramos has also said that the U.S. Immigration and Customs Enforcement agency has estimated that it costs $12,500 to deport one person. Using that estimate, it would cost $137 billion to do the deportations Trump wants.
Most commentators, whether liberal or conservative, recognize that the cost of mass deportations would be prohibitively expensive. I have seen other estimates in the cost range from $285 billion to $600 billion. The price tag would include the costs of apprehension, detention, legal processing, and transportation.
The legal and constitutional issues raised are vast. Due process, equal protection, and Fourth Amendment claims jump out. If Trump does intend to deport U.S. born children of illegal immigrants, what about the Citizenship Clause of the Fourteenth Amendment? Would Trump try to deport U.S. citizen children?
Assuming he would not (which may not be the case), what would happen to those children when their parents are sent across the border? There are so many mixed immigration status families. American citizens would be put in the extremely difficult position of having to decide whether to stay in their home country, away from their families, or leave. It would be a Sophie’s choice.
And how would undocumented workers respond to the deportations? While some might go voluntarily, it is a safe bet that many would not. I would predict the desperation level would be extreme. Undocumented workers are typically among the most vulnerable and exploited workers in America. Unscrupulous employers are notorious for preying on these workers by cheating on wages, subjecting them to dangerous conditions and by ignoring worker injuries. One can only imagine what accommodations, compromises and deals undocumented workers would make to stay off the immigration authority radar screen so they could stay in the country.
Then I should mention the many undocumented immigrants who own businesses and employ others. By some estimates, hundreds of thousands of American small businesses are owned by undocumented immigrants. The business could be a restaurant, a corner convenience store, or a small construction outfit. Would these businesses just be shut down? What would happen to the assets?
If an undocumented business owner poses no threat to national security, runs his business lawfully, pays taxes, and hires American citizens, does it make sense to close that business down?
Trump’s plan almost assumes there is no Constitution or other legal authority. Millions of undocumented immigrants would assert rights that they have under current law. Even if he was serious about pursuit of mass deportations, the timeline Trump projects is la-la land. The possible legal issues are endless and they would be hard fought until the end. The legal fight-back would be aggressive and sophisticated.
Imagining the process of mass deportations is imagining a nightmare scenario. What dragnet would catch these people? Would Americans be encouraged to become stool pigeons ratting out their neighbors? Across the country, how would the immigration authorities zero in on the undocumented? Almost certainly, skin color, accent, and manner of dress would place some people at a higher risk for a stop and investigation.
For a nation of immigrants, the gestapo-like endeavor of ferreting out, arresting and deporting millions is utterly un-American and an affront to our Constitution.
What makes this even worse is that a plan similar to Trump’s has been done before and very few Americans even know about it. In an episode that goes back to the Great Depression-era years of 1929-1936, federal, state, and local authorities sanctioned policies that resulted in mass deportations of Mexicans and Mexican-American citizens. That forced return to Mexico is known as the Mexican Repatriation. Although not well known history to Anglos, the Mexican Repatriation is now widely seen as a humanitarian disaster that trampled due process.
The repatriated mostly had lived in California, Michigan, Colorado, Texas, Illinois, Ohio and New York before they were deported.
In 2006, the state of California formally apologized for its role in those deportations and expressed contrition to the deportees “for the fundamental violation of their basic civil liberties and constitutional rights during the period of illegal deportation and coerced emigration”. In 2012, the city of Los Angeles also issued a formal apology to the victims of the repatriation. The federal government has never apologized.
The history of that era is instructive. In 1929, in the aftermath of the stock market crash and 25% unemployment, President Herbert Hoover’s administration sought a scapegoat for the horrendous economy. Hoover was widely hated by masses of people for doing nothing to help everyday people who faced an awful economy. Hoover settled on the Mexicans to be a scapegoat. During the 1930’s, an estimated one million Mexicans and Mexican-Americans were deported back to Mexico. An estimated 60% of those deported were U.S. citizens.
At the time, many Americans believed that foreigners were taking jobs and services they needed. They saw the repatriation as leading to jobs for “real Americans”. There was an irony about this view. Before the 1929 Great Depression, U.S. employers, with the support of the government, had greatly encouraged Mexican migration to the United States. That migration had been seen as helpful to the economic development of the southwest. The Great Depression changed all that.
President Hoover’s Labor Secretary, William A. Doak, helped to engineer the mass deportations. Doak had immigration officers scour the country for illegals. His immigration officers raided union halls, dances, social clubs and other Mexican enclaves.
The repatriation made a mockery of any legal process. Intimidation was the general rule. Immigration officials armed with guns and batons conducted sweeps looking for suspects of Mexican ancestry. When suspects were found, they were usually arrested without any arrest warrant. Often, they were denied counsel. Deportation hearings were conducted inside city or county jails. The immigration officer acted as interpreter, accuser, judge and jury. Not comprehending their rights, some volunteered to self-deport.
The norm was that no legal record or judicial transcript of these hearings were kept. Even if an immigrant invoked the desire for counsel, that privilege was left to the discretion of the immigration official. There is evidence that Mexicans were misled and enticed to leave the country by being told they would be able to return later when that promise was false.
The repatriation broke up many families. Thousands of children who had lived in the United States their entire lives and who could not speak Spanish were sent to Mexico to live for the rest of their lives. In many cases, those who were deported never saw their family members again.
Considering the current discussion about mass deportation prompted by Trump, I find it amazing how little awareness there is about our buried experience with Mexican repatriation. There is a reason Gore Vidal used to talk about the United States of Amnesia. Americans have a bad history with forgetting. We have a blind spot with Latino history. While there is more awareness of historical crimes committed against Native Americans and African Americans, the crimes committed against Latinos have been hidden away. I think the Mexican repatriation is a perfect example.
There is a cluelessness and utter lack of historical awareness in Trump’s plan. He does not seem to know his idea was tried before in the 1930’s with disastrous results. Also, he needs to be called out on lies. Whatever people think about illegal immigrants, the overwhelming majority are not criminals or violent gang members. Most are looking for a better life and economic opportunity. That is something immigrants have always done coming to America.
Comprehensive immigration reform, including a path to citizenship for the undocumented, is a far superior approach to Trump’s. Trump has indulged in hateful demagoguery and his ideas around mass deportations need to be utterly rejected.
Leave the Fourteenth Amendment Alone: The Republican Presidential Candidates and Birthright Citizenship – posted 9/6/2015
I must say I was surprised when I saw that illegal immigration was going to be a defining issue for Republican presidential candidates. After losing the Latino vote so decisively in 2008 and 2012 (McCain got 31% in 2008 and Romney got 28% in 2012), conventional wisdom had predicted the Republicans would moderate and support some version of comprehensive immigration reform, including a path to citizenship for the undocumented.
Conventional wisdom was wrong. Latino outreach does not appear to be on the Republican agenda. Not only have they not moderated, the Republicans have doubled down and pushed in a more extreme, nativist direction. Their candidates, most notably Donald Trump, have advocated a mass deportation of the eleven million undocumented, building a 2000 mile impenetrable wall on our southern border, rescinding the Executive Order on the DREAM act, and tripling the number of immigration agents.
We have also heard proposals like Chris Christie’s who suggested tracking non-citizens like FedEx courier packages.Then there is Scott Walker’s idea to build a wall on our Northern border with Canada.
Most radically, Trump has proposed ending birthright citizenship for so-called anchor babies. He has been joined ideologically in this endeavor by Scott Walker, Rand Paul, Lindsey Graham, Bobby Jindal and Rick Santorum, among others. Trump says that birthright citizenship remains the biggest magnet for illegal immigrants.
Birthright citizenship refers to a person’s acquisition of United States citizenship by virtue of the circumstances of their birth in the country.
Ending birthright citizenship would require addressing the Fourteenth Amendment of the U.S. Constitution, whether by court challenge or by constitutional amendment. The Fourteenth Amendment plainly states, in part,:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by this Citizenship Clause.
At the risk of being called a loser by Trump fans, I admit that I find the idea of politicians’ monkeying with the Fourteenth Amendment a sickening prospect. One hundred and fifty years later, I don’t think it needs their “improvements”.
The Fourteenth Amendment is not any old amendment. The Civil War was fought over this amendment. There is much blood behind it. The Fourteenth Amendment negated the infamous Dred Scott decision of 1857 which held that neither slaves nor their descendants could ever become citizens. It is not an exaggeration to say that the Fourteenth Amendment is the best reflection of our fundamental national commitment to fairness.
Immigration restrictionists have latched on to the phrase “subject to the jurisdiction” to say that the Framers intended to exclude the children of illegal aliens from the protection of the Citizenship Clause. While no one can pretend to divine the intent of the Framers, I would submit that interpretation is highly unlikely.
A heavy preponderance of legal scholarship supports the proposition that the ratification debates taken as a whole indicate that the Fourteenth Amendment was designed to extend citizenship to all people born in the United States regardless of the race, ethnicity, or alienage of their parents.
I would particularly cite the work of historian, Garrett Epps, the author of Democracy Reborn, a fascinating history of the Fourteenth Amendment and the fight for equal rights in post-Civil War America. Epps has written:
“After the crime of slavery, the framers of the Fourteenth Amendment wanted to create a new nation in which there would be no sub-humans, no inferior caste that could be sold on to plantations or herded into camps. The citizenship clause is a key part of the structure they built. There are some scholars who disagree, but mostly they are not “the top”. Most of the anti-birthright “evidence” is phony.”
Epps points out the incongruity that passionate anti-slavery thinkers who devised the Citizenship Clause as a means of overruling Dred Scott would have any intention to create a new class of non-citizens lacking all rights. Context is important and Epps believes the Framers were very tuned in to migration controversies of the era. During the Civil War years, the U.S. population increased by four million people – most of them immigrants.
In that era, immigration restrictionists complained about gypsies and the Chinese. Epps says the Framers knew what they were doing and they intended to address both the matter of the former slaves and immigrants in drafting the Fourteenth Amendment. They wanted to put citizenship above the politics and prejudices of any given era.
In this connection, I would be remiss if I did not mention a little known but extremely relevant U.S. Supreme Court decision decided in 1898. The case, United States v. Wong Kim Ark, speaks directly to those complaining about anchor babies today. Wong Kim Ark, the son of Chinese parents, was born in San Francisco in 1873. His parents were not citizens and they moved back to China after his birth,
Wong Kim Ark became a test case when he returned to the U.S. from China, sought readmission into the country, and was refused. This was not his first return trip back to the U.S.. Wong Kim Ark sued, challenging the government’s refusal to recognize his citizenship.
This was an era of vicious racism directed against the Chinese who had been scapegoated, in part, because of a bad economy. Humiliating, berating, harassing, beating and murdering of Chinese was so commonplace that newspapers seldom bothered to print the stories. A less told story is the frequent lynching of Chinese workers that occurred in the West. In California, mob violence directed against Chinese people was not uncommon.
In the late 19th century, Congress passed a Chinese Exclusion Act which prohibited all immigration of Chinese laborers. The Exclusion Act also prohibited immigrants from China from becoming naturalized U.S. citizens. Violators faced up to 10 years’ imprisonment, plus deportation. I would note that, along with the Chinese, exclusion policies extended to the Japanese and Filipinos.
In spite of this very difficult political environment, the Supreme Court ruled for Wong Kim Ark, stating,
“…to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”
The Court narrowly interpreted the Citizenship Clause phrase “subject to the jurisdiction” to mean being required to obey U.S. law. Down through the years, the excluded have been a limited class of individuals who are not subject to U.S. law such as the children of ambassadors.
In considering the matter of illegal immigration now, I am struck by historical parallels with earlier waves of nativist hysteria. It is a recurring theme in American history where some ethnic group or other is blamed for failures in the economy. Targets have included Irish Catholics, German-Americans, the Chinese, the Jews, and south-eastern Europeans, among others.
Attacking birthright citizenship is just the latest incarnation of this deep-seated nativist tendency. This time around the target is Latinos. How they crashed the economy, exported good jobs from the U.S. and refused to raise wages is never explained.
In his essay, “The Paranoid Style in American Politics”, the late historian Richard Hofstadter discusses conspiratorial mindset, nativist obsession, and the tendency to manufacture self-serving facts to promote an agenda. Trump’s fantasy that the Mexican government is shipping rapists and its worst criminals to America is like an example that could have been written about by Hofstadter if he were alive today.
The horrible problem with immigration internationally right now shows the need for an American response to the problem that is both rational and compassionate. In 2015, it is sad to see a major American political party, oblivious to our history, going down such a dark direction.