The Intersection of Race and Class in U.S. Immigration Law and Enforcement

By Johnson, Kevin R. | Law and Contemporary Problems, Fall 2009 | Go to article overview

The Intersection of Race and Class in U.S. Immigration Law and Enforcement


Johnson, Kevin R., Law and Contemporary Problems


I

INTRODUCTION

Since its emergence in the 1960s and 1970s, ethnic- (including white) studies scholarship has analyzed race and class as intertwined and interrelated. (1) An inherently conservative discipline, law is notoriously resistant to scholarly change. As a result, legal scholarship often lags behind the cutting edge of other disciplines. Not surprisingly, only in relatively recent years has the intersection of race and class become the subject of a growing body of critical legal scholarship. (2)

A bit of intellectual history helps explain the isolation of two bodies of legal scholarship--Critical Legal Studies (CLS) and Critical Race Theory--that would seem to naturally analyze race and class both critically and in tandem. The late 1970s and early 1980s saw the emergence of CLS, which scrutinized the law squarely through a class-conscious lens. (3) In the wake of considerable conflict and acrimony, Critical Race Theory publicly split off from CLS with the stated aim of more-thoroughly probing the impact of race on the development and maintenance of the law. (4) Over the years, the two bodies of scholarship, with distinctly different goals, have developed in separate spheres and veered in independent directions. (5)

This issue of Law and Contemporary Problems will no doubt contribute to the literature on the intersection of race and class in modern American social life. This symposium is especially timely in light of the recent 2008 Presidential election, which undeniably focused national attention on both race (with the first African American elected President) and class (with the nation reeling from the devastating impacts of the downward spiral of the U.S. economy, the home-mortgage-loan crisis, and the torn and tattered stock market).

There is no better body of law to illustrate the close nexus between race and class than U.S. immigration law and its enforcement. (6) At bottom, U.S. immigration law historically has operated--and continues to operate--to prevent many poor and working noncitizens of color from migrating to, and harshly treating those living in, the United States. (7) The laws are nothing less than a "magic mirror" into the nation's collective consciousness about its perceived national identity--an identity that marginalizes poor and working immigrants of color and denies them full membership in American social life. (8)

But, as in many areas of law, matters of race and class in the U.S. immigration laws are unquestionably more complicated today than in the past. Fortunately, express racial exclusions can no longer be found in the immigration laws. A by-product of the 1960s civil-rights movement, the Immigration Act of 1965 (9) abolished the facially discriminatory national-origins quotas system that had remained a bulwark of U.S. immigration law since 1924. (10) As a consequence of this sea change in the law, the nation experienced a dramatic shift in the racial demographics of immigration, with an especially sharp increase in migration to the United States from Asia. (11)

Importantly, although Congress eliminated the racial exclusions from the immigration laws, provisions of the current U.S. immigration laws regulating entry into the United States, such as economic litmus tests and arbitrary annual limits on the number of immigrants per country, (12) have racially disparate impacts. (13) Everything else being equal, people from the developing world- predominantly "people of color" as that category is popularly understood in the United States--find it much more difficult under the U.S. immigration laws to migrate to this country than similarly situated noncitizens from the developed (and predominantly white) world. (14) Nonetheless, because of the consistently- and overwhelmingly--high demand among people in the developing world to migrate to the United States, people of color dominate the stream of immigrants to this country. (15)

Although racial exclusions are something of the past, the express--and aggressive--exclusion of the poor remains a fundamental function of modern U.

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