Trump can learn a lot from FDR’s refugee policy

The Immigration Act of 1924 established the current consular control system, under which any alien seeking to immigrate to the United States must obtain a visa from a U.S. consular officer abroad.

Before the enactment of the statute, screening was done at the point of debarkation in the United States, which, for New York City, was Ellis Land after 1890. Persons who did not meet screening requirements were returned to their port of origin. Most arrivals passed, but some didn’t, which is why Ellis Island was also called “Heartbreak Island.”

The 1924 Act’s legal regime, with a few tweaks, regulated immigration into the United States until 1952.

The 1924 Act was carefully crafted to exclude non-Europeans and undesirables arriving from Europe (e.g., Southern and Eastern Europeans). A prior statute, the Asiatic-Barred Zone Act of 1917, prohibited immigration from the Asia-Pacific Zone, including West Asia (British India, the Middle East) as well as East Asia.

{mosads}As a back-up, the 1924 Act further excluded Asians because they were ineligible for citizenship unless born in the United States. Because of the Fourteenth Amendment, Africans were eligible for citizenship but their numbers were negligible. More generally, the Act launched “national origin” quotas limiting immigration to two percent of the foreign-born residents in the US of the relevant nationality as counted by the 1890 US census. Immigration into the United States consequently plummeted. In 1907, 1.25 million immigrants were processed through Ellis Island alone; in 1927, there were about 150,000 lawful immigrants into the entire United States. Most Americans strongly favored the Act — only 9 senators voted against it; the House vote was 323-71.

The rise of Adolf Hitler, and the fear and flight it inspired in those, like Jews, who had no place in his vision for greater Germany, put enormous strain on the 1924 Act’s legal framework. But there was no separate provision for refugees, and Americans, in the throes of Depression, were in no mood to make room for them.

Moreover, even when German Jews could qualify as “quota immigrants” because of the relatively capacious quota for German-origin nationals based on 1890 U.S. census numbers, Hitler’s draconian laws forbidding Jews from taking more than a few U.S. dollars out of the country resulted in consular denials of visas to them based on the 1924 Act’s “pauper” exclusion.

President Franklin Delano Roosevelt did what he could, for instance, by using his presidential authority over immigration to order the State Department to expedite visas for Jewish refugees and by combining the German and Austrian quota numbers after the 1938 Anschluss.

FDR’s measures may have saved some 50,000 Jews. His actions on their behalf were broadly condemned, however. He was criticized for abusing his presidential powers by acting unilaterally. And he was attacked by many in Congress and Americans at large who believed that Jews could not be assimilated into American culture, that there were German spies among the refugees, and that many Jews harbored anarchist or communist views antithetical to the American way of life. Indeed, some have criticized him for not doing more.

The civil war in Syria is the great humanitarian disaster of the 21st century. Almost half a million human beings have perished; there are nearly five million refugees. The legal challenges against President Donald Trump’s January 27, 2017 Order have focused mostly on the suspension of visas.

This is understandable, because U.S. resident visa holders seeking re-entry, or foreigners with family or pre-existing connections to the United States, have the strongest legal claims under the Constitution and applicable law. Syrian refugees, by contrast, have very weak legal claims, but they are the most adversely affected by Trump’s Order. Section five of the order indefinitely suspends the entry of Syrian refugees, subject to case-by-case discretion with preference to any member of a “religious minority in his country of nationality facing religious persecution.” Since the majority religion of Syria is Islam, it is doubtful whether any Muslim qualifies for special consideration.

What is ultimately most troubling about President Trump’s order is not that it is un-American, but that it is so very American. There has always been an ugly contradiction between the inspirational ideals of liberty and openness this country was founded upon, and the self-interested prejudices of the majority of those fortunate enough to count themselves Americans.

The President, and all Americans, need to remember our unfortunate, not-so-distant past and also what this country stands for, both to us and to the rest of the world. President Harry Truman put it this way, when he vetoed (unsuccessfully) the 1952 Immigration Act passed to staunch the flow of refugees fleeing communism in Eastern Europe:

Today, we are protecting ourselves as we were in 1924, against being flooded by immigrants from Eastern Europe. This is fantastic. We do not need to be protected against immigrants from these countries–on the contrary we want to stretch out a helping hand, to save those who have managed to flee into Western Europe, to succor those who are brave enough to escape from barbarism, to welcome and restore them against the day when their countries will, as we hope, be free again. These are only a few examples of the absurdity, the cruelty of carrying over into this year of 1952 the isolationist limitations of our 1924 law.

As President, Trump has a constitutional duty to keep the country safe and wields great power to do so, including power conferred by Congress to deny entry to aliens who pose a legitimate risk. To the extent there is serious risk of terrorist infiltration among Syrian refugees, he can and should order the State Department to conduct more rigorous screening of them. But as President, Trump is also the leader of this country and its face to the world. And history will judge him harshly if he continues to stand for what is worst in America, turning our back on unfortunates facing horrific death and destruction.

Thomas Lee is the Leitner Family Professor of International at Fordham Law School and Director of International and Graduate Studies at Fordham Law School in New York. He teaches and writes about constitutional law, international law, and the federal courts.

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