by Daniel Kanstroom. Cambridge: Harvard University Press, 2007. 352pp. Hardcover. $45.00 / £29.95 / €34.00. ISBN: 9780674024724.
Reviewed by Leila Kawar, Department of Politics, Bates College. E-mail: lkawar [at] bates.edu.
In 1995, Peter Brimelow, a Forbes editor and contributor to the National Review, and himself an immigrant (from the United Kingdom), issued a shrill and highly politicized attack against US immigration policy and practice. Brimelow’s work paved the way for the anti-immigrant backlash that crystallized in Proposition 187 as well as the harsh criminal deportation provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Drawing upon unambiguously racialized language, Brimelow claimed that white America’s culture and traditions were threatened by “colored” immigration from Latin America and Asia, which had created a “teeming underworld” within US borders. Brimelow advocated doubling the size of the US Border Patrol and sealing the US-Mexico border “with a fence, a ditch, and whatever other contrivances that old Yankee ingenuity finds appropriate” (p.259). He also proposed that undocumented immigrants should be stripped of access to public benefits and summarily deported. The title that Brimelow gave to his polemical tract was ALIEN NATION.
During the past fifteen years, US policymakers have responded to xenophobic rhetoric, such as Brimelow’s, by putting in place an increasingly crude regime of immigration control. It is this current state of affairs that Daniel Kanstroom takes as a starting point for his book DEPORTATION NATION, a title that alludes to the disastrous consequences for immigrants of Brimelow’s earlier tract. As Kanstroom’s introduction illustrates, in the system that exists today, a young man from Panama, who has lived in the US since the age of four and who pleaded guilty to a very minor crime of assault, can be put in solitary confinement, with no right to a bail hearing, and deported because of a retroactive change in the classification of deportable crimes. According to Kanstroom, the current system is part of a decade-long “deportation experiment,” to which hundreds of thousands of immigrants and their families have been subjected and which tacitly serves as a means of exerting social control over foreigners. As Kanstroom points out, the fact that contemporary immigration laws have so utterly departed from Madisonian liberal ideals of due process is an unresolved and under-discussed contradiction within a state that prides itself as constituting “a nation of immigrants.”
Kanstroom’s primary project in writing DEPORTATION NATION was to investigate the historical roots of the current system, purposefully going beyond the anti-immigrant politics of the 1990s. He argues that contemporary immigration controls, viewed in terms of [*528] normative principles, are simply among the cruder manifestations of a centuries-old practice of deploying deportation for social control purposes. The book traverses more than two-hundred years of American history, and even some Canadian history, to investigate “the pedigree” of the current deportation system. Kanstroom provides an exhaustive, almost archaeological (in the Foucauldian sense), tracing of the ideas that govern contemporary immigration control. The book is written as a series of stories. For each story, the author: 1) gives the historical context – documenting what legislators and administrators did, 2) describes how the judiciary responded, and 3) analyzes how in each case the Court’s jurisprudence contributed to the slow, incremental, and reactive construction of the principles that ground contemporary deportation policy.
This reflection on history with an eye to contemporary policies can be quite evocative. In some instances, the historical vignettes deal with policies unrelated to immigration, understood in a narrow sense. For example, the history of the ante-bellum enforcement of the Fugitive Slave Law, does not involve immigrants per se. And yet the book evocatively argues that it is possible to locate the ancestral origins of the plenary power doctrine (which continues to dominate immigration control jurisprudence) in the legal theories adopted to legitimize these ante-bellum policies. The administrative system for returning fugitive slaves was a revolutionary expansion of federal bureaucracy, but judges dismissed arguments that it violated limits on the federal government’s powers as well as basic procedural protections. Kanstroom argues that the judiciary’s legitimization of the expanding migration control complex constituted by the fugitive slave return bureaucracy laid the groundwork for the creation of national institutions to control the movement of people and the current immigration control administrative apparatus. Similarly, he demonstrates that many procedural aspects of the Fugitive Slave Law (the summary nature of the proceedings, the nonjudicial status of the adjudicators, denial of a jury trial) were later adopted by Congress and accepted by the Supreme Court as legitimate components of the deportation regime. Kanstroom’s provocative claim is that the deep, almost unconscious, principles created by this ante-bellum history enabled both the creation of deportation controls and their legitimization.
Making such bold and suggestive claims, the book is thought provoking. It forces us to think about deportation at length and in new ways. The incredible scope and shockingly harsh consequences of contemporary criminal deportation policy are presented as having an illustrious, or perhaps infamous, pedigree. This is important, because these policies are not regularly featured in public discussions, or even in scholarly discussions outside of the narrow niche of immigration law scholarship. Taken in historical perspective, the deportation provisions associated with the “War on Drugs” are seen as simply another manifestation of the tendency of Americans to enforce moralistic social control regimes through immigration law. Previous episodes include the Colonial “Warning Out” system, and the Progressive Era criminal deportation laws. [*529]
So too, with the government’s use of national security deportation provisions to control noncitizens’ lives. Reading through two-hundred years of history, it becomes clear that in the category of persecution of political opposition movements through immigration laws, one could place the 1798 Alien Friend Act alongside the 1903 Anarchist Law, the 1918 Sedition Act, the 1950 Internal Security Act, and the 1990 Immigration Law’s support for terrorism deportation provisions. This historicization is essential if deportations based on claims of material support for terrorism are to be taken out of the reified polemic on national security on which American political discourse still seem to be fixated. The book is helpful reading for social scientists because it collects such a wealth of historical evidence from a mix of primary and secondary sources. It quickly becomes apparent to the reader that similar patterns of politics affecting immigration policy have manifested themselves with regularity over the course of American history.
Kanstroom covers extensive ground in his sweeping social and legal history and the book’s breadth inevitably leads at times to a lack of precision. For example, the book’s five chapters are historically bounded, but these historically-based chapter divisions are not explicitly explained by the author. Although they make sense for the most part, one exception might be the division between chapters four and five into what Kanstroom terms the second and third waves of the modern deportation system, which seem to correspond approximately to before and after the Great Depression. Yet, while the New Deal radically altered many areas of law, its effects on immigration control policies were less significant. For example, the Leftist immigrant defenders such as Carol Weiss King, who pioneered modern immigration defense work, were contesting policies in the 1920s and in the 1940s and ‘50s that similarly drew upon immigration control laws to target non-citizen labor activists and Communist Party members. If the chapter divisions were based on jurisprudential rather than political considerations, it would be helpful to make these more explicit.
A certain lack of precision likewise characterizes the book’s idea-oriented analysis, which does not always attend to the precise mechanisms by which principles move from one context into another. While the history of ideas does not need to make a sharp distinction between the concepts that motivate legislative and executive actions and the concepts behind judicial opinions, the institutional differences are of great interest to social scientists. Those who study courts as institutions would find it useful to have a description of the doctrinal or institutional mechanisms by which particular legal ideas that were enunciated in earlier periods have found their way into current doctrine. Clearly, there was a direct trajectory in the Chinese Exclusion cases whereby the plenary power doctrine contaminated first exclusion, then refusal of re-entry, then deportation of long-term residents. But, in terms of recent jurisprudence, arguments have been presented, by Kevin Johnson and others, that the immigration-related decisions of contemporary Circuit Judges are motivated, at least in part, by their adherence to the CHEVRON v. NRDC principle of deference to agency decisions. It would be interesting to [*530] investigate and disentangle the respective roles of the plenary power doctrine and the Reagan Era politics of administrative law in contributing to the current situation. The last chapter covering contemporary developments would be where this would need to be traced, but in that chapter the book switches into a much more doctrinal and normative register. Putting aside the question about CHEVRON deference, it would at least have been interesting to examine the historical context of the 1980s War on Drugs and its impact on the immigration acts of 1988 and 1990, which were the precursors to the major reforms in 1996.
Kanstroom’s legal and social history of the US deportation system reveals the extent to which the law of immigration control has at times operated as a state of exception, exempted from the due process principles at the root of Anglo-American rule of law. This raises the question of whether fighting to regain due process is the only course of action for those who care about immigrant rights. Over the past few decades, courts in other countries have found ways to enforce weak versions of social and economic rights, particularly in the context of immigration, rather than being bound to due process and equal protection rights. For example, the German Constitutional Court has ruled that long-term non-citizen residents are protected from deportation by a liberty-based right to individual personal development, and the European Court of Human Rights has found that the right of noncitizens to lead a normal family life must be balanced against the state’s interest in border control. DEPORTATION NATION examines more than two-hundred years of US immigration control and traces the assertion, development, and refinement of centralized, well-focused, and often quite harsh government power subject to minimal judicial oversight. It shows how the removal impulse has been integral to our nation of immigrants. Bringing attention to this unsettling but enduring feature of American legality may enable American immigration law to begin to chart a more human rights oriented path.
Brimelow, Peter. 1995. ALIEN NATION: COMMON SENSE ABOUT AMERICA’S IMMIGRATION DISASTER. New York: Random House.
CHAE CHAN PING v. UNITED STATES (THE CHINESE EXCLUSION CASE), 130 U.S. 581 (1889).
CHEVRON v. NATIONAL RESOURCES DEFENSE COUNCIL, 467 U.S. 837 (1984).
© Copyright 2008 by the author, Leila Kawar.