The Obama administration was in the Supreme Court recently, defending the president’s discretionary power to suspend the law concerning the deportation of aliens in the country illegally.
Solicitude for illegal immigrants has become a hallmark of contemporary progressivism, but a century ago the founders of progressive political theory were constructing a deportation policy that would be more to the liking of Donald Trump.
The one consistent theme between the old progressivism and the new is its celebration of unshackled administrative power.
The founders of the progressive movement were among the earliest advocates of immigration restriction. Francis Amasa Walker, for example, was the founding president of the American Economic Association in 1895, the organization that rebelled against laissez-faire orthodoxy in American economics and called for active government regulation of the economy.
In 1902, he warned that the “new immigrants” — whom he called “the vast throngs of ignorant and brutalized peasantry from the countries of eastern and southern Europe” — were a threat to American labor and culture. They were “beaten men from beaten races,” he famously concluded.
In other words, the Austro-Hungarian Empire, to paraphrase Trump, was not “sending us their best.” Richard T. Ely, another founder of the AEA and a leading progressive reformer, approvingly quoted Walker in his 1908 book, Outlines of Economics.
The immigration-restriction movement had its first success on the West Coast, against “Oriental,” primarily Chinese, immigrants. Edward A. Ross was a progressive sociologist who warned about the dangers Chinese immigration posed to the white working class in California.
In 1900, he was fired by Stanford University — Leland Stanford had found Chinese labor quite useful in building the Central Pacific Railroad — in the first major case of “academic freedom” in the history of American higher education. He moved on to the University of Nebraska, where he worked closely with progressive legal theorist Roscoe Pound.
In 1882, Congress passed the first of several Chinese Exclusion Acts. It provided virtually unlimited discretion to federal agents (later consolidated in the Immigration and Naturalization Service) to enforce the laws. This was exactly what progressive political theorists said was needed to bring American government up to date with new social and economic problems.
The old Constitution, political scientists like Woodrow Wilson argued, had been “outgrown” by new circumstances. Effective modern government needed to get over the Founders’ restrictive separation of powers, for example. Congress should instead delegate lawmaking power to new agencies, staffed by scientifically trained experts, who should also be able to enforce the law without legal impediments.
Immigration law enforcement became a model of the progressive vision for a new administrative state. The Chinese Exclusion Act allowed federal officers to deport any person of Chinese descent who did not possess a certificate of legal residence, with none of the traditional protections that the Constitution offered to criminal defendants. (The feds argued that deportation was not a criminal penalty.)
In an early case (Fong Yue Ting, 1893) upholding one such summary deportation, Justice David Josiah Brewer, an archconservative, likened the proceedings to the antebellum Fugitive Slave Act, and warned that it could be extended “to other classes and other people.” This was law enforcement without the rule of law.
In 1905, the Court reaffirmed the wide administrative berth that immigration officials enjoyed. Ju Toy claimed to be a native-born American citizen, but was held for deportation after he had returned from visiting China. A federal district court overruled the immigration officers, but the Supreme Court reversed and Ju Toy was deported. Justice Brewer again in dissent said that he was unable to “see how anyone can read these rules and hold that they constitute due process of law.”
But progressive academics held up these decisions as normal exercises of administrative discretion. “The immigration cases contributed to the development of important legal doctrines, and thus are part and parcel of modern constitutional administrative law,” University of California law professor Gabriel Chin notes.
Many states had similarly given final authority to boards and commissions to determine what had previously been considered judicial questions. The author of one of the first treatises on administrative law, Harvard Law Professor Bruce Wyman, called for judges to defer to bureaucrats.
Proponents of a stronger Interstate Commerce Commission, which had been created in 1887 but hemmed in by judicial rulings, called for what might be called “Ju Toy deference” by the courts to agencies. In 1918, the Harvard Law Review considered the case the beginning of American administrative law.
President Obama’s claim of executive-branch discretion with regard to immigration law can also be seen in his progressive forbear, Theodore Roosevelt. The Chinese Exclusion Act did not apply to Japanese immigrants, who were becoming increasingly unpopular on the West Coast. TR didn’t wait for Congress to act, but instead made an informal “gentlemen’s agreement” with the Japanese government to limit immigration in 1907.
Congress finally did act to restrict all immigration in its 1921 and 1924 quota acts. For the next 40 years, there was very little legal immigration to the United States. The lawless methods of the Immigration Service became something of a scandal by 1932, as outlined in law professor William C. Van Vleck’s book, Administrative Control of Immigrants, a call for more of the traditional rule of law and less arbitrary administration in immigration policy.
Obama embodies the progressive shift from anti- to pro-immigrant policy. But his political behavior simply returns to the progressive tradition of administrative discretion — to what Van Vleck called “a system of administrative procedure, of executive justice, with a maximum of powers in the administrative officers, a minimum of checks and safeguards against error and prejudice, and with certainty, care and due deliberation sacrificed to the desire for speed.”
In short, it is the progressives’ administrative state instead of the Founders’ constitutional rule of law.