American Passage_ The History of Ellis I - Vincent J. Cannato [231]
In a 2001 Supreme Court case dealing with the rights of a detained immigrant who had been ordered deported, Justice Antonin Scalia repeated words that were familiar for over a hundred years of immigration law. “Insofar as a claimed legal right to release into this country is concerned,” Scalia wrote, “an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.” But in 2001, Scalia’s defense of the plenary power doctrine was found in the dissent. He was correct to note that the majority of the Court refused to overturn the precedent of the Mezei decision, but instead chose to “obscure it in a legal fog.” In the twenty-first century, it appears that much of U.S. immigration law is mired in that same fog.
The terrorist attacks of September 11 and the war on terror have led to more questions about immigrant admissions and the rights of aliens. Could the United States pass new laws—and more strictly enforce the current ones—against immigrants from the Middle East, a form of ethnic and racial discrimination akin to the Chinese Exclusion Act? On the other side of the equation, the status of suspected terrorists detained by the U.S. military has brought about a legal debate as to the constitutional rights of noncitizens. None of these issues have been settled and the future will likely bring only more confusion and conflict over these laws.
In the early twenty-first century, few Americans are satisfied with the nation’s immigration law. Some Americans find that the law is broken and unenforced, that millions enter the country illegally and little is done. Others complain about the arcane regulations that govern much of immigration law, for instance, treating refugees from one country differently than those from another. They criticize an immigration law that can be so inflexible that it forces millions to enter the country surreptitiously.
Immigrants are faced with a bifurcated system. Those who seek to enter legally are often faced with a daunting bureaucratic challenge in dealing with an increasingly byzantine system. Those who enter illegally bypass the red tape, but live under the radar and outside the bounds of the national community. Many find the two-tiered society of legal and illegal immigrants troubling and un-American. Wherever you fall on the immigration spectrum, current American immigration law is bound to disappoint, frustrate, and anger.
If the regulation of immigration is somehow tied to the rise of the burgeoning federal government, then our contemporary attitudes toward that government are not helping. Many of those who wish stricter controls and regulation of immigrants are often on the political right and are often the same people who call for limited government intervention in the marketplace. Conservative attacks on government make the call for stronger action against immigrants seem hollow.
Many who call for fewer restrictions on immigration and support open borders are on the political left, but they are often the same people who call for greater government involvement in the economy. They increasingly minimize the right of national sovereignty and dismiss nationalism as an outmoded and reactionary ideal, yet they wish to galvanize the nation for universal health care and other welfare-state programs. They claim to be concerned about rising income inequality, but are relatively uninterested in the idea that cheap immigrant labor keeps