The Ever-Changing Bogeyman: How fear has driven immigration law and policy

The attached policy study appeared first in Vol. 77 of the Louisiana Law Review. 

The campaign for the Republican nomination for the American presidency in 2015 and 2016 has been marked by hyperbole and fearmongering. No candidate has made such a pronounced impact in the category of shocking or politically incorrect verbiage as Donald Trump. One of the predominant talking points across Republican candidates’ campaigns has been illegal immigration and border security. Trump’s framing of the issue put it into terms that have long been used to justify a restricted immigration policy:

Either we have a border or we don’t have a country. You can’t have a country without borders. People are coming in and some of those people—I read it even yesterday, there was a huge article about the tremendous crime that’s taking place. It’s like a crime wave. One of the most dangerous places on earth.

Although many commentators dismissed Trump as “a flawed candidate who may be too inconsistent and nasty to appeal to most Americans,” his consistently high polling “illustrate[s] deep anxiety and anger in the country.” Statements such as this one evoke a sense of patriotism and stir up “fears about the boom of immigrants without legal status,” while echoing a fear of immigration that, whether intentional or not, drives America’s immigration policy. Although Trump’s comments are harsh and controversial, the base sentiment behind them—fear—is perfectly understandable. Fear is instinctual; fear keeps us alive; fear motivates us to question things around us and instigate change.

The United States’ response to the events of Sept. 11, 2001 was rooted in that survivalist instinct driven by fear. Because of the particular impetus for the U.S. response, shortly after Sept. 11, 2001, the field of immigration law quickly became a focal point in the Global War on Terror. Not only did the federal government enact new immigration laws to better defend the nation as a direct response to the attacks, but the government also began using the immigration laws already on the books in a different way—as a tool of national security. Immigration law is unique in its national security application. The uniqueness of its application stems from its dual usage as the apparatus for entry into the United States, as well as the mechanism by which we keep out those who pose a threat. Viewing “national security” in its broadest meaning, there is a clear security interest in maintaining the integrity of the borders.

However, there is also an interest—an interest that can compete with the national security interest—in continuing our role as a beacon of light and of hope to the world community, our role as a nation where the “tired … poor, [and] huddled masses” have refuge. This latter interest is critical because America is a place where public diplomacy is advanced through the citizenry’s diversity, which defines us as a people. Not only does a rational immigration policy bring the best and brightest to the United States—Albert Einstein as just one famous example—but it also brings a diversity of culture that has proven to be our greatest diplomatic instrument.

This article explores the relationship between national security and immigration law—and, specifically, how immigration as the proverbial “bogeyman” has steered immigration law. Part I discusses the definition of national security, as defining it is a prerequisite to discussing its implications on immigration law. Part II provides a historical backdrop of national security and shows how events throughout history have sparked “fear” that has led to legal action. Part III of this article provides the reader with a picture of the current legal framework of immigration law, including provisions of the Immigration and Nationality Act. By examining provisions of the act and peripheral legal issues, such as providing “material support to terrorist organizations,” this part addresses the national security questions of protecting the borders, population control and the very essence of the rule of law. Last, Part IV of this article explores the conflict between individual rights and national security. This part attempts to answer the threshold question of whether it is appropriate that our national security interests and perhaps exaggerated fear should drive the development and implementation of immigration law.

Image by Pamela Au

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