S. Deborah Kang. The INS on the Line: Making Immigration Law on the US-Mexico Border, 1917-1954. New York: Oxford University Press, 2017. 296 pp. $35.00 (cloth), ISBN 978-0-19-975743-5.
Reviewed by Kunal M. Parker (University of Miami School of Law)
Published on H-FedHist (January, 2019)
Commissioned by Caryn E. Neumann (Miami University of Ohio Regionals)
Donald Trump won the American presidency in 2016 in significant part because of his promise to build a wall along the US-Mexico border. Mexico, we were told, would pay for the wall. Although the more extravagant pretensions of the border wall scheme have since run aground, Trump’s commitment to the scheme has not wavered. He has sold it to his base as a solution to America’s “immigration problem.”
Critics of Trump’s border wall scheme have repeatedly pointed out its many and obvious flaws. A wall along the US-Mexico border will not extirpate the problem of undocumented immigration, they observe, because it will not deal with those who overstay their visas. Focusing on the country’s border with Mexico and not on its border with Canada and its coastlines, furthermore, will leave open the possibility of surreptitious border crossings. The wall itself might prove to be too puny a barrier in our technologically sophisticated age. There seems to be widespread agreement that, even as the wall will not solve the problem of undocumented immigration, it will inflict costs on racialized immigrants, domestic minorities, and communities that straddle the border. None of these criticisms have made a dent in Trump’s medieval fantasy of physical fortification, which itself rests upon the fantasy of a border as an identifiable and demarcated line in the sand.
The genius of Deborah Kang’s The INS on the Line is that it shows in painstaking detail how very little Trump’s simplistic fantasy has to do with the actual history of the US-Mexico border. Kang offers us a highly original account of state regulation—the appropriate phrase is really “state production”—of the border between 1917 and 1954. She shows how the US-Mexico border emerged as a complex and extended negotiation between the forces of nativism and the concerns and interests of border communities; between the US and Mexico; between “law on the books” as established in Washington, DC, and “law in action” in California, Texas, and Arizona; and among the multiple agendas of legislatures, agencies, courts, border residents, employers, and migrants.
The result of these negotiations was often regulatory innovation by agencies chronically starved of funds and personnel who were simultaneously anxious to appease multiple constituencies and eager to pursue their own agendas. Some of these regulatory innovations took place as an exercise of administrative discretion; others in response to the pressures of acting in the here and now in difficult circumstances; yet others in violation of the letter of the law. But all involved lawmaking of one kind or another, making the border itself an active site for the production of law. Thus, Kang shows how, during World War I, the secretary of labor exercised discretion under applicable law to fashion an agricultural worker program. Southwestern growers had complained about labor shortages and the government accommodated them by simply waiving for Mexican laborers general immigration restrictions (literacy tests, head taxes, strictures on contract labor). At other times, regulatory innovation occurred because circumstances on the ground made compliance with the strict letter of the law practically impossible. Kang shows how border agencies accommodated border residents’ freedom of movement across the border by creating border crossing cards and provisional passports at a time when few possessed the passports required by the Passport Act of 1918. At yet other times, the immigration and border control agencies subverted the letter and spirit of the law, as in the well-documented case of the mid-century bracero program, when US authorities played a significant role in the encouragement of undocumented migration in violation of the terms of the US-Mexico agreement, once again to accommodate the needs of growers. What is fascinating is that many of these ad hoc legal and regulatory innovations produced on the border—for example, the practice of encouraging voluntary departure of aliens at the border instead processing them for deportation—found their way back into formal law and have become permanent features of immigration law.
The informal and innovative practices adopted by the state on the border could sometimes be benign, as in the case of accommodating border residents. But they were mostly oppressive, as when the state deliberately turned a blind eye to exploitative workplace conditions for migrant laborers, sought to expand its surveillance of and intrusion into the lives of undocumented immigrants well beyond the border, or forcibly removed millions when the labor market could no longer absorb them, which only drove those who remained further underground. It is perhaps safe to say that the thrust of the innovations adopted by the immigration and border patrol agencies was in the direction of instrumentalizing Mexican labor. Mexican labor was allowed in contravention of law when needed, driven through surveillance and policing into accepting oppressive laboring conditions, and removed through mass deportation drives during tough economic times.
While Kang is acutely aware of the exploitative nature of lawmaking on the US-Mexico border, she chooses not to make this the most significant story one can tell about it. She prefers to emphasize the fact that the border is plural. As she puts it, the US-Mexico border has always been, simultaneously, “an impermeable sovereign boundary, a permeable socioeconomic zone, and a vast policing jurisdiction” (p. 3). This emphasis on plurality—the idea that it makes sense to think not of “the border,” but of many borders coexisting one another—is what distinguishes Kang’s work from the work of others who have studied the US-Mexico border. One might quibble with Kang over whether emphasizing plurality as she does gets us further than emphasizing oppressiveness. But it is hard to deny that Kang is, strictly speaking, correct. Furthermore, to emphasize the plurality of the border as she does might be more important than ever at a moment when the idea that the US-Mexico border can be reduced to a line and a wall seems to have gripped the imaginations of so many Americans, often at great peril to families, businesses, and lives on both sides.
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Kunal M. Parker. Review of Kang, S. Deborah, The INS on the Line: Making Immigration Law on the US-Mexico Border, 1917-1954.
H-FedHist, H-Net Reviews.
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