Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws (Critical America)

301 Pages·2007·0.87 MB·English

by  Kevin Johnson

Opening the Floodgates
Critical America
General Editors: Richard Delgado and Jean Stefancic
Recent titles in the Critical America series include:
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John P. Jackson, Jr.
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The First Amendment in Cross-Cultural Perspective:
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Ronald J. Krotoszynski, Jr.
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No Seat at the Boardroom Table: How Corporate Governance and
Law Keep Women Out of the Boardroom
Douglas M. Branson
White by Law: The Legal Construction of Race, Revised Edition
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Opening the Floodgates: Why America Needs to
Rethink Its Borders and Immigration Laws
Kevin R. Johnson
For a complete list of titles in the series, please
visit the New York University Press Web site
at www.nyupress.org.
Opening the
Floodgates
Why America Needs to Rethink Its
Borders and Immigration Laws
Kevin R. Johnson
a
NEW YORK UNIVERSITY PRESS
New York and London
new york university press
New York and London
www.nyupress.org
©2007by New York University
All rights reserved
Library of Congress Cataloging-in-Publication Data
Johnson, Kevin R.
Opening the floodgates : why America needs to rethink its borders
and immigration laws / Kevin R. Johnson.
p. cm.
Includes bibliographical references and index.
ISBN-13:978-0-8147-4286-0(cloth : alk. paper)
ISBN-10:0-8147-4286-6(cloth : alk. paper)
1. Emigration and immigration law—United States. 2. United
States—Emigration and immigration—Government policy. 3. United
States—Boundaries. 4. Illegal aliens—Government policy—United
States. I. Title.
KF4819.J645 2007
342.7308'2—dc22 2007016966
New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2 1
Contents
Preface and Acknowledgments vii
1 A Call for Truly Comprehensive
Immigration Reform 1
2 A Brief History of U.S. Immigration Law
and Enforcement 45
3 Bordering on the Immoral: The Moral
Consequences of the Current System
of Immigration Regulation 87
4 The Economic Benefits of Liberal Migration
of Labor Across Borders 131
5 Why Open Borders Are Good for All Americans 168
6 The Inevitability of Permeable Borders 200
Notes 213
Index 275
About the Author 289
v

Preface and Acknowledgments
My book The “Huddled Masses” Myth: Immigration and
Civil Rights (2004) analyzed the civil rights impacts of the U.S. immi-
gration laws throughout U.S. history and how that history often com-
pares unfavorably with the myth that the United States welcomes to its
shores the “huddled masses” from the world over. That book critically
examines how immigration touches on sensitive issues of race and civil
rights, which helps explain the vociferousness of the public debates that
the topic consistently generates.
In the past decade, it has become readily apparent to almost all in-
formed observers that the problems with U.S. immigration law and its
enforcement have worsened. Thousands of migrants have died on the
U.S./Mexico border, as enforcement measures in the major border hubs,
such as San Diego, California, and El Paso, Texas, funneled migrants
into isolated deserts and mountains where the risks of the journey were
much greater—in fact, deadly—than had been the case for all of U.S.
history. Moreover, the U.S. government’s “war on terror” after the
tragic events of September 11, 2001, focused almost exclusively on im-
migrants. Many blatantly discriminatory and arbitrary immigration
measures were adopted in the name of making the country safer.
Despite aggressive steps to enforce the border, immigration law has
failed to achieve its goals. Undocumented immigration continues un-
abated as migrants pursue the American Dream. The nation, by most
accounts, appears no more secure than it ever has been. In 2005–2006,
immigration reform again dominated the national consciousness. The
U.S. House of Representatives passed a harsh enforcement-oriented pro-
posal that provoked marches of tens of thousands of immigrants and
their supporters in cities across the United States.
This book steps back to scrutinize the foundational premises of U.S.
immigration law. It offers an intellectual starting point for the com-
prehensive reform necessary to remedy the chronic enforcement, civil
vii
viii | Preface and Acknowledgments
rights, and other problems that have plagued past and current U.S. im-
migration laws. By questioning the concept of the border as a barrier to
entry rather than simply a regulatory checkpoint monitoring entry into
and exit from the United States, this book offers a fresh approach to im-
migration law and enforcement for the twenty-first century.
A roundtable discussion of open borders at the Immigration Law
Teachers Workshop in May 2002 at Loyola–New Orleans School of
Law sparked my initial interest in writing about open borders. Although
personal circumstances prevented me from attending the workshop, my
thinking benefited from the written submissions of the roundtable par-
ticipants (David Abraham, Daniel Kanstroom, David A. Martin, and
Leti Volpp).
The book began in earnest as an article prepared for the UCLA Law
Review’s Symposium on “Law and the Border: Examining the Frontier
Between the United States and Mexico,” in January 2003. The article
presented at the symposium was published as “Open Borders?” in 51
UCLA Law Review 193 (2003). Parts of that article have been adapted
in various chapters of this book. Richard Delgado, Steve Legomsky,
Thomas Wuil Joo, Miroslava Chavez-Garcia, Joel C. Dobris, Victor C.
Romero, Rob Correales, Jack Ayer, Rachel F. Moran, Peter Margulies,
Holly Doremus, Diane Amann, and Michael Scaperlanda offered helpful
comments on a draft of the article. The comments of Alex Aleinikoff,
Christopher David Ruiz Cameron, George Martínez, Rachel F. Moran,
and Mary Romero at the symposium at UCLA School of Law where I
initially presented the article helped my thinking on the issues.
Comments on the introductory chapter of this book on a panel at the
2005 Law & Society annual conference sharpened my thinking. Thanks
to Rubén García for organizing that panel, which included Rubén, Bill
Hing, and Margaret Stock. I also presented a draft of the first chapter of
the book at the Mid-Atlantic People of Color Legal Scholarship Confer-
ence at American University, Washington College of Law, in Washing-
ton, D.C., in January 2006. Thanks to Dorothy Brown for inviting me
to participate. I also presented a draft of the first chapter at the 2006
Immigration Law Teachers Workshop at the University of Nevada Las
Vegas and benefited from the comments. Thanks to Raquel Aldana, Da-
vid Abraham, Evelyn Cruz, Jennifer Gordon, Jim Hathaway, Ernesto
Hernández-López, Aarti Kohli, Cristina Rodriguez, Jonathan Weinberg,
and Michael Wishnie for their challenging thoughts and comments. I
Preface and Acknowledgments | ix
also benefited from the comments of the BYU faculty members who al-
lowed me to present this project in October 2006. Thanks to Kif Augus-
tine Adams for arranging this workshop.
InOctober 2006,Ipresentedthebookconceptatanimmigrationcon-
ference at California State University, Sacramento. Christina Bellon or-
ganized the conference. Sharon Barrios offered perceptive comments on
my project.
Richard Delgado first suggested that I write a book on this topic.
Richard and Jean Stefancic, coeditors of NYU Press’s Critical America
series, have been supportive of this book, as well as all of my scholarly
work. I thank them for their continued support. I also am indebted to
Jack Ayer, who suggested the topic of open borders to me years ago and,
since then, has forwarded me relevant information on the topic, and Joel
C. Dobris, who for years has sent me copies of immigration articles
from a plethora of eclectic sources and encouraged me to write on bor-
ders and their meaning. Conversations with George Martínez over a
number of years helped my thinking on immigration, race, and civil
rights. Michael A. Olivas has provided intellectual and personal support
to me throughout my academic career for which I am forever indebted.
Friends, including Bill Hing, Jennifer Chacón, Amagda Pérez, Angela
Onwuachi-Willig, and many colleagues at UC Davis School of Law, too
numerous to name, have offered me encouragement for my scholarship
at every juncture. NYU Press Senior Editor Deborah Gershenowitz was
tremendously supportive of this project. Last but not least, thanks to
Dean Rex Perschbacher for his enduring support of my scholarship and
other endeavors.
UC Davis law students Cerissa Salazar Parreñas, Stella Schmidel,
Laura Urias, Wynter O-Blanquet, and Jessica Gill provided valuable re-
search and editorial assistance. Jessica Gill’s careful editing greatly im-
proved the manuscript. All of my research assistants’ commitment to the
humane treatment of immigrants is inspiring. As always, Brigid Jimenez
provided outstanding editorial and other support above and beyond the
call of duty. Glenda McGlashan and Cynthia Coble offered important
editorial assistance, as well.
Parts of chapter 2are adapted from “National Identity in a Multicul-
tural Nation: The Challenge of Immigration Law and Immigrants,” 103
Michigan Law Review 1347 (2005), which I coauthored with my col-
leagueBillOngHing.ThankstoBillforworkingwithmeonthatproject