The Danger Of Adjudicating American Identity

Unable to answer the fundamental question of what it means to be American, our lawmakers have instead punted it to the courts. Regardless of how the Supreme Court rules on the Muslim ban, and potentially the status of Dreamers, it will amount to a missed opportunity to define our national identity. Lawmakers on both sides of the aisle fiercely oppose the deportation of Dreamers and are disturbed by aspects of the Muslim ban. Why then do so many choose inaction?

For years Congress has refused to resolve the limbo of the Dreamers, and now a Muslim ban insincerely advertised as temporary is added to its record of indifference. Opposition to the ban and Dreamer deportations is difficult to sustain and, therefore, legislate partly due to the opacity of the consequences. This is not the case of the Jewish passengers aboard the ocean liner St. Louis who were sent back to Nazi Germany in 1939. Grave danger awaits some, particularly the refugees–but for most it is a quiet separation from family or the abrupt demise of their American dream. Hyperbole begins to rule the discourse as those impacted by the Trump administration vie for the limited attention of the nation.

If we are exceptional, it is a consequence of our overly legalistic understanding of citizenship and what it means to be an American.

The debate over the future of immigration is marked by an all-embracing belief in American exceptionalism–but we are not as unique as we suppose. Our closest allies also experience terrorism and have refrained from implementing bans. However, an inclination to deport undocumented immigrants and permit prejudice to infiltrate our immigration choices is not unusual. Why then should the U.S. be held to a higher standard? Because our national mythology–that sanitized American story we tell ourselves–calls on us to be.

If we are exceptional, it is a consequence of our overly legalistic understanding of citizenship and what it means to be an American. Pure jus soli, or citizenship by birth, is not as common as one might think. Its unconditional form does not exist in Europe and many states require parental birth in the country as well. In 2004, on the heels of its own concern over an “anchor baby” case, the Irish Nationality and Citizenship Act was passed which restricts birthright to those with at least one parent who also qualifies for citizenship. Difficult formal language tests are also an increasingly popular feature of European citizenship. While European citizenship is rooted in a historical connection to the land itself or the demonstrated ability to integrate, U.S. citizenship finds its legitimacy in bureaucracy. Perhaps this is why Russian birth tourists avoid controversy, but Dreamers who speak unaccented English, pay taxes, and view themselves as American still face derision.

If support for Dreamer deportation and the Muslim ban is genuinely rooted in a rigid respect for the law, then this is a departure from traditional American values. Americans respect institutions more than authority, and the legacy of the frontier family pushing West on horseback is far more celebrated in our culture than the legal immigrant waiting in queue at Ellis Island. Yet Dreamers are told to accept the consequences of their alleged infanthood transgressions, and families impacted by the Muslim ban must quietly wait in a nonexistent line to be reunited with their family members. When family immigration is permitted, the wait sometimes lasts for over a decade, making “chain immigration” an intentionally misleading characterization. The ban also precludes many non-immigrant visas and support for these measures from the “party of family values” often prevents real American families from even seeing their loved ones.

When nativist voices contend that their law-abiding immigrant ancestors “did it the right way” it is more a result of accommodating laws than respect for the process itself.

However, during the 1980s there were about 150,000 Irish in New York City alone who had overstayed their visas which eventually led to the creation of a diversity visa lottery that disproportionately benefited the Irish. When nativist voices contend that their law-abiding immigrant ancestors “did it the right way” it is more a result of accommodating laws than respect for the process itself. Some immigrants inspire more accommodation than others, and it is color and religion rather than education or economic status that appear to be the controlling factors. Most Dreamers and those impacted by the Muslim ban would qualify for merit based immigration if solely evaluated on their economic indicators.

Since our elected representatives have chosen to cater to our worst inclinations rather than our greatest values we now look to the third branch of government–the judiciary.  Alexander Hamilton declared that the duty of the courts “must be to declare all acts contrary to the manifest tenor of the Constitution void.” But we must remember the imperfections of this document are enshrined in a long history of amendments and the courts have in the past upheld slavery, the criminalization of homosexuality, and segregation. Consider that Korematsu v. United States, which upheld the internment of Japanese Americans, technically remains good law. In asking us to reject it as precedent, and instead view it “simply as a moment in historical time in which particular justices applied the law to specific facts,” Harvard Law Professor Noah Feldman invoked the fallibility of the judges we increasingly look to for redemption.

The legacy of the decision to do nothing will fall squarely on the shoulders of lawmakers who chose to hedge their bets on the judges saving us rather than take action. Perhaps the discourse is so contaminated by misinformation that they fear they cannot communicate the facts to their constituents. Maybe it is simply easier to do nothing. However, in doing so, the Congress and the American people have relinquished an opportunity to define our country and defend the legacy of positive American exceptionalism when it comes to welcoming immigrants into our society.

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