The Diplomatic Origins of Immigration Law

Abstract

This chapter explores the origins of immigration law in the United States. Until the late nineteenth century Congress created few rules to govern immigration, beyond setting a uniform rule for naturalization. Instead, presidents facilitated immigration through the negotiation of commercial treaties that ensured reciprocal protections for foreign nationals in the United States and Americans abroad—first with nations in Europe, and later with China during the California Gold Rush. State and local governments simultaneously acted as de facto regulators through the use of their inspection and taxation powers. In the 1880s, however, circumstances changed. In response to growing resentment of Chinese immigration on the West Coast and pressure from eastern seaboard states struggling to manage immigrant flows, Congress finally enacted significant legislation, passing the Chinese Exclusion Acts and beginning the American experiment with immigration restriction. By the close of the twentieth century, foreign affairs and national defense were no longer necessary contexts for the assertion of broad presidential leadership or power. Presidents continued to rely on their foreign affairs powers to significant effect through World War II, and diplomacy remains relevant to immigration policy today. But the rise of the administrative state and the President’s role in steering an ever-expanding bureaucracy ultimately became the preeminent source of executive authority to control immigration law.