Between 1882 and 1891, the U.S. Congress enacted a spate of immigration laws though which the federal government assumed virtually exclusive control over a regulatory sphere that historically had been the province of the states. This Article argues that this federalization of immigration regulation represented an attempt to reconcile the nation’s most cherished ideological commitment - the notion that the U.S. would forever remain an exceptional, “free labor” republic - with the unprecedented social and economic convulsions of the 1870s and 1880s.
The meaning of both immigrants and immigration was fundamentally transformed during the Gilded Age due to two successive “crises” of mass economic dependency - first, a wrenching depression that began in 1873 and lasted throughout the decade; and second, the so-called crisis of “foreign pauper labor” that dominated American political discourse on immigration throughout the 1880s. Eschewing sustained inquiry into the structural economic causes of these crises, policymakers, political intellectuals, labor spokesmen, and economists instead diagnosed an outbreak of mass economic pathology, which attributed widespread “pauperism,” and later, “pauperizing labor,” to the defective character of the poor themselves. That defectiveness, they further concluded, was not home-grown, but rather imported from the allegedly effete, racially degraded, declining civilizations of Europe. By drawing on a series of highly specialized, frequently shifting ideas about racial difference, policymakers and others submerged a conspicuously unexceptional picture of industrial America into a discourse of economic pathology that associated foreignness with racial unfitness for free labor.
This emergent construction of European immigrants demanded a basic redirection of regulatory policy and practice. Within less than two decades, policymakers, immigration officials, courts, labor leaders, and others reconceived the principal purpose of immigration regulation from that of assisting newly landed immigrants, to that of excluding undesirables and, accordingly, shifted its operational emphasis from policing the environment into which immigrants entered to policing the immigrants themselves. Under the weight of these new regulatory priorities, the robust federalism that historically had characterized the regulation of immigration gave way. Contemporaries’ construction of mass dependency in effect nationalized the purposes of immigration regulation, as a consensus emerged among influential northerners that the future of the American citizenry, the quality of citizenship itself, and, ultimately, the very health of the republic, lay in the balance.
Preserving the Exceptional Republic: Political Economy, Race, and the Federalization of American Immigration Law, 17 Yale J.L. & Human. 181 (2005)