From at least as far back as the anti-Chinese laws of the 1800s, immigration has been a place of heated racial contestation in the United States. Although modern immigration laws no longer expressly mention race, their enforcement unmistakably impacts people of color from the developing world. Specifically, the laws, as enacted and applied, limit the immigration of people of color to, and facilitate their removal from, the United States.
Modern immigrant rights activism, which has grown by leaps and bounds in recent years, encountered a powerful counter-response led by none other than President Donald J. Trump. His presidential administration made aggressive immigration enforcement a priority like no other in modern U.S. history. Exemplified by the Administration’s heartless separation of Central American families, consequences of the U.S. immigration policies and their enforcement fell primarily on immigrants of color.
As the nation collectively engages in a reckoning with historical racial injustice, it is important to recognize that the movement for justice for noncitizens of color shares important commonalities with the goals of the Black Lives Matter movement. Fundamental to both social movements is the demand for an end to systemic racial discrimination in law enforcement.
Part I of this Essay maps the discriminatory foundations of federal immigration law, the lack of constitutional review, and the enduring fortress built by the courts to shield discrimination against immigrants from judicial review. Part II considers the surprising emergence of a powerful immigrant rights movement—energized, organized, and formidable, yet handicapped by the fact that noncitizens cannot vote—fighting for no less than racial justice. Part III summarizes the emergence of the Trump Administration’s staunch resistance to that movement, which stridently sought to maintain and reinforce the racial caste quality of the contemporary immigration system. Part IV considers the uncertain future of the quest to bring racial justice to immigration law and suggests a road to its transformation.
Dean and Mabie-Apallas Professor of Public Interest Law and Chicanx Studies, University of California, Davis, School of Law. Thanks to the organizers, especially Guy-Uriel Charles, for putting together an amazingly rich collection of racial justice essays and inviting me to contribute. Jack Chin provided helpful comments on a draft of this Essay. I also benefited from comments at the virtual Reckoning and Reform Journal Symposium in December 2020, especially from commentators Aziza Ahmed and Osmundia James and participant Bijal Shah. Law student Joana Peraza Lizarraga, a future lawyer and immigrant rights activist, provided excellent research assistance for this Essay. In April 2021, I virtually presented parts of this Essay in the Jerome Hall Lecture at the University of Indiana Maurer School of Law and benefited from the comments of faculty (especially Luis Fuentes-Rohwer and Christiana Ochoa), staff, and students.
Copyright 2021 by Kevin R. Johnson
Cite as: Kevin R. Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U. L. Rev. Online 1 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1308&context=nulr_online&preview_mode=1&z=1620939228.