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Excerpted From: Gabriel J. Chin and Daniel K. Tu, Comprehensive Immigration Reform in the Jim Crow Era: Chinese Exclusion and the Mccreary Act of 1893, 23 Asian American Law Journal 39 (2016) (192 Footnotes) (Full Document)


ChinAndTsuHow the law should deal with large groups of deportable non-citizens is both a venerable question of federal legal policy and a major controversy today. This Article examines the first debate in the United States over the choice between mass deportation of those in violation of law, and compromising the firmness of the law, a problem involving Chinese migrants that arose over a century ago.

Since the founding of the United States, immigration and citizenship law contemplated a white America. The Naturalization Act of 1790, signed by George Washington, Thomas Jefferson, and John Adams, limited the privilege to “free white persons.” As an act of the First Congress, the 1790 law was approved by many of the Constitution's Framers. Racial restriction remained part of naturalization law until 1952.

Federal immigration law, like naturalization law, was race-conscious. It developed and grew in the second half of the nineteenth century as a means of excluding Asians. A major step was the Chinese Exclusion Act of 1882. General numerical limitation would not become a part of federal immigration law until 1921; before then, in principle, any number of immigrants could come, although there were “qualitative” exclusions based on an immigrant's health or criminal record. Yet Chinese workers were not just limited or subject to quotas; instead, they were excluded absolutely on the basis of race.

Congress expanded and tightened racial exclusion over time. In 1892, the Geary Act, authored by Representative Thomas Geary (D-CA), required Chinese, and only Chinese, to register with the U.S. government on pain of imprisonment and deportation. On the advice of distinguished attorneys, almost all Chinese declined to register. However, the Supreme Court upheld the Geary Act's registration requirement in Fong Yue Ting v. United States. As a result, Chinese people and the government faced a dramatic problem: U.S. policy deemed Chinese laborers undesirable and prohibited their future entry into the country. Almost all Chinese laborers currently in the United States had become deportable because they chose not to comply with the law: they were unauthorized migrants.

This was not a racially egalitarian era for Congress; another major accomplishment of the then-sitting 53rd Congress was the repeal of Reconstruction-era laws protecting the African American franchise, which was part of a larger national project aimed at excluding African Americans from politics. As the great historian Oscar Handlin explained: “By the end of the [nineteenth] century the pattern of racist practices and ideas seemed fully developed: the Orientals were to be totally excluded; the Negroes were to live in a segregated enclave; the Indians were to be confined to reservations as permanent wards of the nation . . .” Nonwhites of whatever race or ethnicity had been effectively subordinated by law.

The connection between Western racists and Southern white supremacists was explicit. For example, during the debate on the McCreary Act, Representative John Williams (D-MS) explained: “I am willing to trust the motives, the manhood, the generosity, the capacity for self-government, and the capacity for governing inferior races, inherent in the white people of the Pacific Slope, just as I have appealed to them, and to others, to trust the capacity for self-government of the people of the South.” In the West as well as the South, minorities were to be excluded from political participation.

Anti-Chinese legislators also made the connection between equality for African Americans and the presence of Chinese. Geary noted that he opposed a voting rights bill, a “bill having its origin, no doubt, in the same place as this, which was directed against your people of the South, against your society and the right of the white man to be supreme in the sunny South.” He explained that anti-Chinese legislators in the West voted for white supremacy in the South:

The two Senators from my own golden State, from the State of Nevada, Republicans from Colorado and Oregon, all joined hands with you and said whenever an attack is made by any alien race upon our brother white men of the South, or upon white civilizations anywhere, you can command our friendship and support . . . We freely perceived, as brethren, our duty in upholding the idea that white civilization must be dominant on this continent.

In this environment, one might reasonably assume that racial restrictionists would seize any opportunity to rid the country of a group whose presence, in their belief, would harm the body politic.

Instead of directing mass deportation, however, the 53rd Congress virtually unanimously granted the Chinese another chance. The McCreary Act gave Chinese an additional six months to register while also tightening the Chinese Exclusion Act in several ways. This Article examines the legislative history of the McCreary Act to outline the political and ideological forces leading to its enactment.

[. . .]

There are substantial similarities between the situation leading to the passage of the McCreary Act and the immigration situation the United States confronts today. As in 1893, the number of unauthorized migrants is so large that the federal government simply does not have the infrastructure or resources to deport them all. And as in 1893, the problem is not simply financial. Many believe humanitarian and moral concerns should preclude mass removals even if ample resources were available for immigration enforcement. At the same time, others contend that the most important principle at stake is compliance with the law, regardless of the human cost.

One can view the McCreary Act as a blueprint for comprehensive immigration reform today, even in a nation with deep political divides. In 1893, groups of legislators had incompatible views and interests. As a consequence of these differences, they managed to pass a bill that fully satisfied none of them, while each group got some significant part of what they sought. Members of Congress unwilling to raise taxes found a way to resolve the issue without significant new expenditures. Those who believed it was inhumane to deport the Chinese avoided that outcome. Business interests and their allies in Congress avoided a major political and economic disruption of the U.S.-China relationship. Those opposed to Chinese immigration on the ground of race were able to include measures such as the photograph requirement and restrictions on Chinese merchants that were reasonably calculated to answer the “Chinese question” once and for all. The McCreary Act was not a civil rights bill, a humanitarian bill, a business bill, or an enforcement bill -- but it had aspects of each of those things, which made it broadly acceptable.

In short, in 1893, when the consequences of the Civil War still reverberated in the halls of Congress, a fractured nation solved the immigration problem. If comprehensive immigration reform ever does come to the United States, it may well follow the path of the McCreary Act: horse-trading, political compromise, and negotiation leading to a bill that gives the major interests involved less than all they want, but significant parts of what is most important to them.

Conversely, another way of viewing the McCreary Act is to see it as part of a historical explanation for the difficulty of immigration reform. One part of the verdict on the McCreary Act must be that the restrictionists did not achieve their goals. The restrictionist group of McCreary Act voters hoped that amnesty for those here now, coupled with heightened enforcement, would finally solve the problem of Chinese immigration. It failed; after McCreary, there was a decades-long series of responses that never managed to shut down unauthorized Chinese migration. Photographs, fingerprints and blood tests helped only to a certain extent. More broadly, the history of immigration regulation suggests that at all times in the United States, there has been, and therefore in the future will be, some significant level of undocumented migration. The alternative -- the condition under which there could be virtually no unauthorized presence -- is a level of government control and monitoring that is not and has never been part of the tradition in the United States.

The McCreary Act also rested on the idea, which is not an established legal principle but is supported by intuition, that there is a difference between denying a benefit to someone who does not have it and taking away a benefit already enjoyed. Even after the Supreme Court ruled in Fong Yue Ting that Congress had a free hand to deport Chinese already in the United States, legislators opposed to future Chinese immigration concluded that Chinese residents had equitable claims that should be honored in the political system. That is, despite being technically deportable, Chinese already here had interests deserving of governmental respect.

It may be that some level of undocumented immigration is inevitable. It also may be inevitable that many Americans will believe that noncitizens who have lived in the United States for a period of time deserve to stay even if they are not of legal status. The result may be that restrictionists may simply be unable to get the permanent solution they seek from immigration reform and instead must learn to accept that compromise and some level of tolerance is the historical way in which the United States has engaged in deportation proceedings.

Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law; Affiliated Faculty, UC Davis Temporary Migration Cluster & Aoki Center for Critical Race and Nation Studies.

Daniel K. Tu, J.D., UC Davis School of Law; Associate, Yim and Zhou Attorneys at Law.

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