U.S. Congress

Significance: Since 1875, Congress has played the major role in determining U.S. immigration law and policy. After a century of unrestricted immigration, Congress began passing laws limiting entry of “undesirables” in 1875 and by national origin during the 1880’s. The major pieces of immigration legislation in 1924, 1952, 1965, and 1986 reflect the contours of American history and beliefs.

Congressional laws regarding immigration clearly follow the general shape of American history. When the U.S. Congress began restricting immigration during the 1880’s, it did so largely in reaction to an outcry against the changing demographics of immigration. Chinese workers were accused of taking American jobs; poor immigrants were seen as coming from the crowded cities of southern and eastern Europe, unlikely to be assimilated in a country made by immigrants from the United Kingdom, France, the Netherlands, Germany and the Scandinavian countries. The attempt to preserve the traditional, pastoral nature of America reached a crescendo during the 1920’s as complicated quota systems were instituted to restore the nation’s ethnic heritage.

The battle against the race-obsessed Axis nations in World War II spurred the United States to relax its own national origins immigration scheme. However, the emergence of the Cold War gave a new cast to Congress’s congressional laws: heightened security against radical influences and the desire to gain skilled workers so as to keep America’s edge against the communist powers. The Civil Rights era of the 1960’s saw the final abolition of the national origins formula. With the end of the Cold War, the direction of immigration laws changed again. By the 1980’s, Congress was most concerned with what to do about the millions of undocumented immigrants who had entered the country outside the elaborate immigration process mandated by Congress.

Congressional Power over Immigration Law

Although the U.S. Constitution explicitly grants Congress the power to naturalize foreign-born persons as citizens, it does not explicitly enumerate jurisdiction over immigration as one of the powers of Congress. However, in Article I, section 8, clause 3, the Constitution does grant Congress the power to “regulate commerce with foreign nations.” Partly because of this ambiguity, Congress made little attempt to control immigration for the first century of the nation’s history. Congress did, however, regulate naturalization—the process of becoming a citizen—for example in the Naturalization Act of 1790, limiting the process to free white persons. As most Americans believed that the United States would be settled by arrivals from foreign nations, this period can be described as one of generally unrestricted immigration. In the period from 1776 to 1875, approximately 11 million immigrants came to the United States. What little regulation there was over immigration came from the individual states.

Comprehensive congressional legislation of immigration began in the last quarter of the nineteenth century. Congressional action in this field can be mostly attributed to two causes—one juridical, the other political. As to the juridical change, the post-Civil War federal government was finding itself possessed of all kinds of powers that had been previously left to the states. As to the political changes, Congress was subjected for the first time to great pressure to restrict immigration, both as to overall numbers and as to national origin. The political battles in Congress and between the federal branches were intense. Over the next seventy-five years, Congress would continue to allow the entry and naturalization of millions of immigrants. However, it would attempt through legislation to shape both the ethnic composition and the beliefs of the new Americans.

The power of Congress over immigration was clarified in the historic Supreme Court case of Henderson v. Mayor of the City of New York (1875). In that case, the Court held that the exclusive power over immigration to the United States lay with the federal government. This power was to be exercised by the Congress chiefly through its power to regulate foreign commerce, although other sources of congressional power over immigration also exist in the Constitution. Concurrently with the Henderson decision, Congress enacted the Page Law, the first permanent legislation restricting immigration to the United States. This 1875 statute forbade the immigration of convicts and prostitutes. Although this legislation affected a relatively small population, it indicated the pattern of restrictive immigration that Congress would follow for the next seventy-five years: excluding disfavored individuals and groups from the nation’s policy of open immigration.

Restrictive Immigration

In 1882, Congress extended the immigration exclusions to “lunatics,” “idiots,” and paupers. In addition, Congress enacted its first exclusion based on national origin. American attitudes toward immigration were undergoing a sea change, reflecting changes in both the nation’s beliefs and the immigration population. The frontier was declared closed during the 1890’s; the vast internal spaces of the American continent were being closed up. No longer was there a western frontier yearning for massive populations arriving from foreign shores. The destination of early immigrants to the United States had often been the frontier; by the end of the nineteenth century, it had become America’s teeming cities. Critics declared this urbanization of the nation, fueled by immigration, a threat to its pastoral, Jeffersonian way of life.

In addition, the composition of the immigrants was changing. During the seventeenth and eighteenth centuries, England and Scotland were the chief sources of immigration. In the first half of the nineteenth century, millions of Irish and Germans were added to the mix, many of whom represented the first large-scale immigration of Roman Catholics to the United States; the nativist movement of the 1840’s was the result. By the end of the nineteenth century, however, the patterns of immigration had shifted from northern and western Europe to southern and eastern Europe. In addition, thousands of immigrants were arriving from non- Western nations, such as China and Japan. These hard-working immigrants were seen by many Americans as competing for American jobs and threatening American businesses. Responding to anti-Chinese sentiment in California and theWest, Congress passed the Chinese Exclusion Act of 1882, suspending immigration of Chinese laborers for a period of ten years. In 1892, Congress extended the Chinese exclusion for another decade; exclusion would be made permanent in 1904 and be repealed only in 1943. In addition, the 1892 law required all Chinese laborers to obtain “certificates of residence”; without such a certificate, Chinese were subject to deportation.

the U.S. Congress passed
In 1882, the U.S. Congress passed one of the most discriminatory pieces of legislation in U.S. history—the aptly named Chinese Exclusion Act. This early twentieth century illustration from Puck suggests five ways in which the Chinese man being kicked (“John”) might get around the law to enter the United States—as an anarchist, as an Irishman, as an English wife-hunter, as a yacht racer, or as a Sicilian. The joke underlying this cartoon was the fact that all five alternative immigrant types were also unpopular in the United States. In later years, Congress would enact immigration laws restricting additional immigrant groups. (Library of Congress)

Through the following decades, Congress passed additional exclusionary laws against Chinese, Japanese, Filipino, and Indian nationals that together constituted an effort to stem an influx of immigrants from Asia. The Dillingham Commission, operating under congressional mandate from 1907 to 1911, proposed more restrictive immigration so as to exclude immigrants from cultures “alien” to American values and beliefs. In addition, Congress continued to add to the list of excluded undesirables: polygamists in 1891; epileptics and anarchists in 1903; people with physical and mental defects or tuberculosis in 1907; and illiterates, alcoholics, vagrants, and, reflecting dubious psychological theories of the day, people of “psychopathic inferiority” in 1917. The head tax, imposed on every entering immigrant beginning in 1882 and increasing in subsequent decades, deterred immigration of the destitute. Medical examinations, begun in 1891, were designed to keep out the diseased.With increased congressional restrictions came the need for increased administrative resources. In 1891, Congress created the Bureau of Immigration as a division of the Treasury Department to enforce immigration law. (With future administrative reorganizations, this division was eventually renamed the Immigration and Naturalization Service—the INS.)

Immigration Quotas Based on National Origin

With the end of World War I in 1918, pressure on Congress to pass immigration restriction was revived. In May, 1919, Washington State congressman Albert Johnson, an outspoken restrictionist, became chair of the House of Representatives Committee on Immigration and Naturalization. In 1921, Congress enacted the Emergency Immigration Act, which is also known as the Immigration Act of 1921. The aim of this law was to preserve the ethnic makeup of the United States. The act limited immigration from each nation to 3 percent of the proportion of foreign-born immigrants of that nationality already living in the United States according to the 1910 U.S. Census.

In 1924, Congress passed the Johnson-Reed Act (also known as the Immigration Act of 1924), which made the national origins quota system permanent. Scheduled to take effect in 1927, it limited immigration from outside the Western Hemisphere to 150,000 persons. The act made immigration from regions other than western Europe even more restrictive by reducing the quota from 3 percent to 2 percent of foreign-born persons. In addition, the act substituted the 1890 U.S. Census as the standard, when fewer immigrants had arrived from outside western Europe. Another provision of the 1924 act excluded from immigration aliens who were not eligible for citizenship. As the Naturalization Act of 1790 limited the naturalizing process to white residents, this provision served to exclude Asians. Having passed more restrictive laws, Congress needed to authorize greater enforcement: The 1924 act established the U.S. Border Patrol to police illegal immigration.

Under the complicated provisions of the 1924 act, the year 1929 saw another change in the calculation of national origin. Again reflecting a more nativist sentiment brought on in part by the disillusion of post-World War I America, the new calculation was aimed to prevent further dilution of the nation’s Anglo-Saxon majority. The new basis for the national immigration quota was to reflect the national origins of the entire American population as indicated by the census. Under this formulation, 85 percent of the total immigration pool was assigned to northern and western Europe and only 15 percent to eastern and southern Europe.

The onset of World War II in Europe in 1939 was an inopportune moment to limit immigrants from Europe. For example, many Jews who wanted to flee Nazi-occupied territories were denied entry. A humanitarian bill introduced to Congress in 1939 that would allow entry to 20,000 refugee children fleeing Nazi Germany was defeated. Under the Alien Registration Act of 1940, all aliens were required to register with the government. Even as illustrious an immigrant as renowned physicist Albert Einstein faced obstacles under the immigration system. Because of his supposedly radical views, such as his belief in pacifism and a one-world government, several conservative groups lobbied for his expulsion. The Federal Bureau of Investigation (FBI) compiled a 1,500-page dossier on Einstein’s suspicious pronouncements and views. Nevertheless, when Einstein acquired American citizenship in 1940, the United States gained one of the great figures of the twentieth century through immigration.

Modern Immigration Law: The INA

With the calamity of World War II, theories of racial superiority that were used to justify the national origins quota system were discredited. Expressing solidarity with its ravaged wartime ally, the People’s Republic of China, Congress in 1943 repealed the Chinese Exclusion Act of 1882 and authorized the eligibility of Chinese for citizenship. Nevertheless, the system of ethnic quotas was not jettisoned. Many congressmen still aspired to shape the immigrant pool so as not to disrupt the melting pot of American society. Congress had been adding piecemeal to the immigration laws for decades: allowing for agricultural workers in 1943; foreign-born spouses in 1946; refugees from persecution in 1948, 1950, and 1953; and exclusion and deportation of communists and subversives in 1950.

In 1952, Congress enacted a comprehensive immigration bill, the Immigration and Nationality Act (INA). The INA, also known as the McCarran- Walter Act, retained the national origins quotas, despite President Harry S. Truman’s veto, which Congress overrode. The law continued to favor immigrants from western Europe; in contrast, immigration from the Eastern Hemisphere was limited to about 150,000 persons. However, the law also indicated new directions that American immigration would take.

To some extent, the emphasis on national origins that had dominated congressional immigration policy since its inception was being displaced by a new requirement: professional skills. Immigrants with desirable work skills were granted onehalf of the quota places. Another preference was created for parents, spouses, and children of aliens and citizens. For the first time, naturalization was made possible for all immigrants regardless of race. Reflecting the ColdWar atmosphere in which the McCarran-Walter Act was enacted, security measures and screening tests for immigrants were tightened. Likewise, the 1965 amendments to the INA (also known as the Hart-Celler Act), enacted in the midst of the Civil Rights era, imported newly won American beliefs of ethnic and racial equality into the immigration system.

In the 1965 amendments, Congress finally rejected the seventy-five-year-old immigration scheme based on national origins, as well as race. Instead, the act emphasized family reunification as the most important factor in immigration admission. Under the act’s more generous provisions for theWestern and Eastern hemispheres, millions of immigrants from Latin American and Asia were able to enter the country. In 1976 and 1978, Congress eliminated preferential treatment for residents from nations in the Western Hemisphere and enacted amendments limiting immigration from any one country to 20,000 persons. This was to the obvious disadvantage of people seeking immigration from countries such as Mexico. Under the Refugee Act and the Refugee Education Assistance Act, both of 1980, approximately 125,000 Cubans entered the country and tens of thousands of Vietnamese entered or received permission to stay in the United States.

Immigration Reform Legislation

In the century of legislation following the Henderson v. Mayor of the City of New York decision, Congress had focused on immigration restriction: how many people from which countries should be excluded fromimmigrating. Beginning in the 1980’s, Congress devoted itself to immigration reform: what to do about the millions of people who had entered the country illegally or who had stayed past their visa dates. The centerpiece of this effort was the Immigration Reform and Control Act of 1986 (IRCA). It was passed by Congress with great difficulty, representing a hard-fought compromise between the major groups involved in immigration affairs. The IRCA was one of the most important and controversial pieces of legislation signed into law by President Ronald Reagan.

The most important part of the legislation was the granting of amnesty to the estimated 6 million undocumented aliens in the United States. These aliens, who were not otherwise subject to criminal sanctions and deportation, could become permanent residents or citizens but only under stringent circumstances. For example, an alien seeking legalization had to apply within one year of enactment of the statute, establish a period of continuous residence, and meet most of the requirements for admissibility as an immigrant. The 1986 act had other important provisions as well. For the first time, sanctions were applied against employers who hired undocumented aliens. Because of a fear that such sanctions could lead to discrimination against foreign-born residents who were eligible to work, the IRCA also added numerous antidiscrimination provisions. The IRCA also provided for the legalization of certain seasonal agricultural workers.

By the time the IRCA deadline for amnesty had expired on May 4, 1988, the federal government was already widely criticized for the inadequacies of the bill. Fewer than 2 million people had applied for amnesty. The enforcement mechanisms against hiring illegal workers were considered lax. Employers claimed to be confused as to the new hiring rules. They were in the odd position of having to examine certain documents and ask certain questions so as to determine whether the prospective employee was authorized to work in the United States, but they were forbidden from examining other documents and asking similar questions so as to comply with the antidiscrimination provisions. Workers with foreign accents or even foreign appearances complained that they were being discriminated against by wary employers.

As a result, Congress passed a series of amendments to the IRCA known as the Immigration Act of 1990 (“IMMACT”). Whereas the IRCA dealt mostly with unskilled laborers, IMMACT focused on the legal entry of highly skilled foreign workers. However, debates over illegal immigration continued to dominate congressional oversight in this area. Most of the congressional legislation at the end of the twentieth century and the beginning of the twenty-first century, including the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), had to do with authorizing and empowering the INS to keep out and deport undocumented aliens. In the wake of the September 11, 2001, terrorist attacks on the United States, Congress abolished the INS and transferred its duties to the newly created Department of Homeland Security.

Howard Bromberg

Further Reading

  • Graham, Otis, Jr. Unguarded Gates: A History of America’s Immigration Crisis. Lanham, Md.: Rowman & Littlefield, 2004. Controversial work critiquing America’s open immigration history. 
  • Huntington, Samuel. Who Are We? The Challenges to America’s National Identity. New York: Simon & Schuster, 2004. A well-known Harvard professor, Huntington argues for a return to the more restrictive immigration laws that characterized the first half of twentieth century America. 
  • Hutchinson, E. P. Legislative History of American Immigration Policy, 1798-1965. Philadelphia: University of Pennsylvania Press, 1981. Chronological and analytical account of U.S. immigration laws, with extensive annotations. 
  • Johnson, Kevin. Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws. New York: New York University Press, 2007. Examines the cyclical history of U.S. immigration law to argue for open borders. 
  • King, Desmond. Making Americans: Immigration, Race, and the Origins of the Diverse Democracy. Cambridge, Mass.: Harvard University Press, 2000. Thoughtful, academic study of the history of immigration law and policy, with detailed chapters on the Immigration Acts of 1924 and 1965. Includes helpful appendix tables showing immigrant numbers by decade and summarizing the major immigration laws in American history. 
  • LeMay, Michael, and Elliott Robert Barkan, eds. U.S. Immigration and Naturalization Laws and Issues: A Documentary History. Westport, Conn.: Greenwood Press, 1999. Includes helpfully edited versions of major immigration and naturalization laws enacted by Congress since the nation’s origin, as well as major court decisions and executive orders and proclamations.Amust for primary research. 
  • Motomura, Hiroshi. Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States. New York: Oxford University Press, 2006. An overview of American immigration laws that emphasizes the traditional American preference for generous acceptance and naturalization of immigrants. 

See also: Constitution, U.S.; History of immigration after 1891; Immigration Act of 1907; Immigration Act of 1917; Immigration Act of 1921; Immigration Act of 1924; Immigration Act of 1990; Immigration and Nationality Act of 1952; Immigration and Nationality Act of 1965; Immigration law; Immigration Reform and Control Act of 1986; Supreme Court, U.S.

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