Comprehensive immigration reform has never been really “comprehensive.” It is better understood as a negotiation between competing interests. In this model, legalization of those already here was traded for enforcement aimed at preventing “future flows.” In important respects, the bargain crossed ideological lines: some erstwhile conservative business interests favored a more stable (i.e., legal) immigrant workforce, and many moderates and liberals considered border security important. Notwithstanding the militarization of the southern border in the 1990s, undocumented migration continued until the 2008 recession. The rate of unauthorized entry from Mexico then reversed and since 2010 immigration from Mexico has remained at net zero, while migration from Central America across the US–Mexico border has increased.
Today’s problems have their origin in an earlier immigration and refugee law and cannot be resolved without fundamental change. The Hart-Celler Immigration and Nationality Act of 1965 established the basic structure of American immigration policy. Baked into the law are low numerical limits on high-sending countries, which all but guarantee that there will be ongoing unauthorized migration. Specifically, Hart-Celler sets an annual global ceiling on new admissions for permanent residence (290,000 in 1965; 425,000 today), distributes 80 percent to family members (mostly of US citizens), and limits each country to a maximum of 7 percent of the total (20,000 in 1965; 25,620 today). The country maximum serves as a quota, which for major sending countries—Mexico, China, India, and the Philippines—has created backlogs of upward of 20 years. It is the primary driver of unauthorized migration.
Like IRCA, the Hart-Celler Act was also a response to an earlier law. It was an effort to correct a 1924 law that established the national-origin quota system. Those quotas intentionally discriminated against eastern and southern Europeans and Asians, according to a hierarchy of racial desirability. The 1965 act imposed quotas on countries of the Western Hemisphere where none had previously existed. By creating a global system of restriction with “equal” quotas for all countries, Hart-Celler reflected the ethos of formal equality characteristic of the civil rights era.
Hart-Celler was chiefly a symbolic reform designed to present a nonracist image to the world during the Cold War. Its substance was deeply protectionist, with a low global ceiling aimed at keeping American wages high and family preferences aimed at keeping the population white. The symbolism of equal quotas was, and remains, indifferent to sending countries’ diverse sizes and needs, and to domestic labor market conditions.
The policies that regulate refugee admissions and asylum also originated in the Cold War but rely on a different concept: universal human rights—rights that transcend the prerogatives of nation-states. The 1947 United Nations Universal Declaration of Human Rights, conceived in the aftermath of the Second World War, includes the rights to exit and to be free from persecution and torture. But it has no enforcement mechanism, and the right to exit one’s own country did not come with the right to enter another.