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tv   Immigration Law the First Amendment  CSPAN  September 9, 2021 3:22pm-4:47pm EDT

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new york, the pentagon, and shanksville, pennsylvania, starting at 7:00 a.m. eastern, saturday on c-span. watch online at or listen on the c-span radio app. >> in her book "threat of dissent: a history of ideological exclusion and deportation in the united states" lawyer and historian julia rose kraut examines the relationship between immigration law and the first amendment when deportation is used to silence political speech. >> it is my pleasure to introduce our speaker today, julia rose kraut, who is both a lawyer and a historian. she received her ba from columbia university and her ph.d. from new york university. her law degree is from the american university's washington college of law. she is the inaugural judith s.k. fellow for the historical society of new york courts and
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today we will be talking about her new book "threat of dissent: a history of ideological exclusion and deportation in the united states" published this past july by harvard university press. julia will begin by telling us something about the book and then we will begin a conversation. julia, the screen is yours. >> great. well, i'm delighted to join you. thank you so much for inviting me to talk a little bit about "threat of dissent." i think what i will do is start with talking a little bit about my arguments as well as some highlights in the book. so "threat of dissent" is a legal, political and social history of the expulsion and barring of foreign noncitizens from the united states based on
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their political beliefs, associations and expressions. it is a chronological narrative, which i begin in 1798 with the alien friends act and take all the way through to the war on terror and the trump administration. so i trace the history of this very unique intersection of immigration and first amendment law and history. what i find is that these ideological exclusion and deportation laws are passed and revised during moments of national insecurity, like the brink of war, during wartime, economic depression, national upheaval or international upheaval and in response to a violent act or occurrence.
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they are passed or revised during moments of national insecurity in the name of national security. what i argue in the book is that the use of ideological exclusion and deportation is continuous and it's used as a tool of political repression to suppress the threat of dissent. and the threat of dissent includes criticism of u.s. policies and politicians, advocacy of reform or revolution or challenges to the status quo or capitalism. what i found is that this tool is enduring and the reason why it endures to this day is because the majority of the supreme court has interpreted ideological exclusion, deportation, as an immigration
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issue, as opposed to a first amendment issue, thus applying immigration legal doctrine, which insulates these restrictions from substantive judicial review, strict scrutiny and more speech protective standards under the first amendment. and so some highlights of the book include a very rich history, it provides a fresh perspective on immigration and the first amendment and civil liberties law and history. each chapter includes those who passed the laws, those who enforced the laws, those who challenged the laws and those excluded or deported under them. there are so many, a lot of familiar names, including emma goldman, clarence darrow, john lennon, carlos suentes, j. edgar hoover, francis perkins, graham green and charlie chaplain. the list goes on but all of
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these characters are in the book and part of this story. what i also do is i talk a little bit about the use of power and discretion by public officials. those who chose to use their power and authority to exclude or deport more and those who chose to exclude or deport less. those who used their power to admit, exclude or deport or to defer or delay deportations. so this discussion of discretion and power under the law runs throughout the entire book.
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what i also describe is the linkage between deportation and denaturalization. i had not anticipated focusing on the naturalization, but what i discovered through research was that the efforts to deport and denaturalize go hand in hand. stripping citizenship from foreign -- foreign noncitizens, but who became citizens when in the united states, to remove those protections of citizenship was crucial in order to eject them. so these efforts and drives to deport also included the drive to denaturalize as well. what i also found was that by taking this long view, this long narrative, i was able to attract the continuities and consistencies over time. the continuities of the use of
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law and the law itself, as well as the consistencies of arguments for ideological exclusion, deportation, and especially those challenges to ideological exclusion and deportation and those challenges which are still articulated today include the argument that ideological restrictions are a form of censorship. that they interfere with first amendment protections, they interfere with free exchange, academic freedom, free inquiry, they also damage the reputation of the united states as a nation of immigrants and as a free confident nation depicting it rather as a fearful, insecure nation. that this is passed in the name
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of national security while undermining values of free expression and values -- american values in liberal democracy. so that is some of the fresh perspective that "threat of dissent" provides and hopefully will make a contribution to not only immigration law and history, but also first amendment and civil liberties law and history. >> all right. thank you, julia, for getting us started. you've only been able to scratch the surface in your brief remarks because there's so much more in the book and you've talked about sort of the larger themes which we can go into, but the book also is full of very dramatic case studies of some of the kids and many others that you talked about that makes for very engaging reading.
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so let me start with one of the larger themes, kind of a backdrop, a key concept in the book that -- which is that of the plenary power doctrine. >> yes. >> and the court's persistent deference to the executive branch in the realm of immigration matters. assuming that there are many folks watching this session who are not attorneys or legal historians, could you talk a bit about the concept of plenary power doctrine and the role that it plays in your story. >> yes. sure. well, i just mentioned that one of the problems that i found is that the majority of the supreme court interprets ideological exclusion, deportation, as an immigration issue and it applies immigration legal doctrine as opposed to first amendment doctrine and precedent and strict scrutiny and those speech
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protective legal standards. now, the immigration legal doctrine i was talking about is the plenary power doctrine. this is a doctrine in immigration law that holds that congress has the power and the authority to pass laws to excluding to deport and that authorities derive under the nation's sovereignty and its inherent right to self-preservation. now, the executive is charged with enforcing those laws, and the judiciary should defer to congress as well as to the executive and their decisions upon whom to deport or exclude. so under this doctrine there's extreme judicial deference to the executive and to the legislative branches when to comes to immigration issues, as we still see this today. so what i found is that although
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people argued that ideological restrictions were a form of censorship and violated the first amendment and that first amendment law should apply, that because of this interpretation of these restrictions as immigration law the plenary power apply and thus insulated these restrictions from substantive judicial review. and this is something that the plenary power doctrine was established in the late 19th century by the supreme court in cases upholding chinese exclusion and has continued its hold in immigration law and you can find it throughout immigration legal precedent and supreme court decisions that pertain to immigration restriction. >> thank you. one of the questions that i had
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in reading the book, i was grappling with and engaging the various case studies centers on the matter of efficacy. so at various times the federal government sought to restrict or to block entry into the country of persons that it deemed to be hostile to national security or who were seen to be sources of subversion, and then it sought to deport various people who were seen in the same way. but the position staked out by many of those targeted by the government, those positions were held in many instances by many american citizens. so with regard to communism, for instance, yes, many immigrants or potential visitors to the united states were communists
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and so, you know, keeping them out might protect the nation, but the united states also was home to tens of thousands of american-born communists as well who loudly trumpeted their beliefs at home. so i guess my question is to what extent was the government effective in its alleged protection of americans from these subversive ideas and if it wasn't effective why wasn't that lesson learned? >> okay. so that's a great question and what you find with ideological exclusion deportation is that it reflects this fear of subversion in the united states and the view of foreigners as the source of subversion. excluding, trying to protect the united states from the threat
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from without, from the threat from abroad of subversion, and then deportation as trying to prevent subversion from within. and what you also find is that this is a tool, it's a tool often used in conjunction with the suppression of dissent and the threat of dissent targeting americans and targeting those within the united states. they go hand in hand. and so what i do is i trace that through, looking at initially with the alien friends act and the passage with the sedition act in 1798, but also looking at the war on anarchy in the early 20th century and that in addition to the suppression of newspapers and meetings and passage of the criminal anarchy law in new york, which targeted anarchists, american and foreign noncitizens, but also there was the passage of the alien immigration act. so we see this also during world war i and during the mccarthy era in the 1950s. so these are tools and they also exploit the vulnerability of foreign noncitizens and foreign immigrant citizens who naturalized to denaturalization,
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deportation or those who sought entry temporarily or as immigrants to exclusion. and so this becomes another kind of tool in the toolbox of suppression, but the targeting also reflects this fear of subversion and the conflation of subversion and foreigners at the same time. were they successful? this is not a story about numbers and so what i conclude in the book is that you don't have a ton of people who are, in fact, excluded or deported, it's really a story about fear and the threat of excluding deportation and what this means. so there are a lot of people who might give up on the process, might choose not to come to the united states to attend that meeting, to take that position
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at a university because of fear of investigation or delays in obtaining a visa or not wanting to enter on a conditional visa. there are those who never left the united states, but under the threat of denaturalization or deportation curtailed their own speech, self-censored, or those who felt persecuted under these laws. and so what you find is that those who face suppression, americans and noncitizens in the united states felt that suppression in a similar way, but also in different ways because of these ideological exclusion deportation laws.
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what is also remarkable is the endurance of them all the way to today which is over the course of the mid 19 -- excuse me -- mid 20th century, particularly in the late 1950s and 1960s, we have more speech protective legal standards of the first amendment. there are attempts by the supreme court to roll back a lot of those loyalty oaths and suppression under anti-communism, however, the statutes that provide for ideological exclusion deportation remain. they survive that roll back and they survive immigration reform in the mid 1960s and they're used well into the 1980s, those provisions, and so that's part of the danger here which is how long these laws are on the books
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and how they can be used subsequently and refashioned and revised and revived to continue to pose a threat to first amendment rights and free speech and exchange and association through to today. >> your point about ideological exclusion and deportation going hand in hand with domestic repression i think is one that comes across in a number of the case studies and i think it's a very important point and in reading this i saw the book or viewed the book in some ways, you know, as a -- on a parallel track to, say, geoffrey stone's earlier work, "perilous times" book about free speech in wartime which centers much more on the domestic side whereas you take a broader international
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canvas. the two things going hand in hand together, i think, is a very apt point. there are a number of fascinating case stories in the book and i want to give you an opportunity to talk about some of them. maybe you could start out with the study of harry bridges, the australian-born left winger who was a labor activist who was head of the radical international long shoremen and warehousemen's union on the west coast. he was regularly targeted by government officials for deportation. could you say something about his story? >> okay.
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so his story appears in the book in chapter 4, and what i cover in chapter 4 is this look at restrictions, particularly the efforts to deport and to denaturalize in the 1930s during the great depression. and this is a very interesting time because what you have and what i describe in the book is two strong women who are part of this sorry and very important to this story. you have the first woman in the cabinet, secretary of labor, frances perkins, and at the time the immigration and naturalization service fell under the labor department, you also have carol wise king who becomes legal counsel for a new
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organization called the american committee for protection of foreign born, and they represent a lot of those who are facing deportation, including ideological deportation. carol wise king is the lawyer who becomes the preeminent immigration lawyer in the country and she represents harry bridges. so harry bridges in this story might be familiar to some, he is that australian-born labor leader in the united states, head of the west coast cio, and j. edgar hoover is determined to get him out of the united states. and he also has -- bridges also has some rivals within the labor organization, and one way that they're going to try to get him out of the united states after hoover provides a very lengthy
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dossier on his affiliations and background on bridges is to use ideological deportation and to claim that he is a member of a subversive organization. so they're going to deport him under one of the ideological exclusion deportation laws. now, where frances perkins comes in is that she comes under fire by using her discretion. as i said earlier in my remarks, part of the story is the use of discretion, decisions to deport or exclude more or less or to defer or delay deportations. and that's what happens with frances perkins defers and delays these efforts to deport harry bridges. she comes under fire from congress for this decision and a congressman from texas named
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martin dies who is head of the house of unamerican activities committee attempts with his colleagues to impeach her for her decision in 1939 to delay and defer deportation of harry bridges under these ideological exclusion and deportation laws. part of what i explore is that there is a question of interpretation of the law and whether it pertains to present membership or past membership or affiliation and that becomes very important. there's another case i mention in which perkins says i'm waiting for the outcome this have supreme court decision, which is kesser v. strecker. the supreme court dismisses the
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deportation efforts because the fellow in that case is no longer a member of the communist party or subversive organization. so the supreme court holds that the interpretation of the statute is that only present members need -- can be deported under the law. that pertains to bridges at that point frances perkins then says, okay, we will hold a hearing in light of this decision and after this hearing the determination is that bridges might be sympathetic to those who are members of the communist party, but he is not currently a member of the communist party. now, what happens? what happens is congress is all
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up in arms and j. edgar hoover is ballistic and dies is really upset as well and they change the law. congress passes the alien registration act of 1940, also known as the smith act, and that changes the law to provide for deportation for past membership. and it really is targeting harry bridges. and so there is another hearing and another case and a supreme court decision and bridges, the supreme court says he was never a member of the communist party or affiliated with the communist party, and so the attempt to deport harry bridges is dashed once again, but the government is determined to try to get harry bridges out of the country. although bridges becomes a citizen after he wins, after this victory for carol wise king and bridges in the 1940s, the
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government tries to denaturalize him and attempts to deport him once again and those fail. so it takes a lot out of harry bridges, it's a long story, but a very important one in terms of the history of idea logical exclusion in the united states -- and deportation in the united states. >> let's move forward in time, and i can't resist asking you about the case of ernest mendel, a scholar and activist who found himself barred from the united states in the 1960s even though he had been here before and had lectured here in the past. my interest in the mendel case is marked in part by my having taken a class with him and another marxist academic in a summer session at boston university in 1979, right before
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my senior year in college. at the time i had no idea of the government's efforts to keep him out of the country and, frankly, i knew nothing of its efforts until i read your book. >> oh, okay. >> there's a lot going on in the 1960s. >> right. >> and i can't imagine mendel's readership being all that great, his books could be very long and very dense and marxist prose. what did it do and why? >> okay. well, thank you for sharing that. and i can talk a little bit after i discuss the mendel case about why he would have gotten into the country in 1979 to teach that class.
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so this is a fascinating case and very important. this precedent is still what we apply to exclusion cases today. and i devote an entire chapter to not only the ernest mendel case but exclusions and attempts to deport during the nixon administration. this is also an example of the importance of archival research. so i'm able to provide for the first time the back story on ernest mendel's exclusion and also a view of what the supreme court was wrestling with and what led to its decision to uphold the ernest mendel's exclusion. and so what you find is that ernest mendel is a belgian marxist economist, also a journalist, and he has come to the united states on prior occasions in 1962 and 1968, and then is invited to debate john
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kenneth galbraith at a conference at stanford, university, and he's also invited to come to various university and college campuses also to give talks. this is early in the fall of 1969. he applies for his visa to come and he is denied and he had just come the year before and he couldn't understand this so through archival research i tracked the correspondence between mendel and consular officials in the state department and he discovers that he was deemed inadmissible and excludable under the mccarran-walter act of 1952 because he is a teacher advocate
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and has published the doctrines of world communism and that provides for the exclusion deportation under this mccarran-walter act passed at the height of mccarthyism but now has survived to be used by the nixon administration in 1969. he doesn't understand how is it possible that he could have entered the year before but not now and what he discovers is that he had been granted entry under a waiver provision, which allows entry to those who are deemed inadmissible with the recommendation of the secretary of state and approval by the attorney general. so he did not know that he had entered under a waiver but apparently he had. now, usually when you enter under a waiver you are on a
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conditional -- under a conditional visa, which restricts what you can do within the united states and how long you can stay. and so what the state department claims is that because he attended a cocktail party that was not part of his itinerary, he strayed from the conditions of his conditional visa under the waiver which he claims he had no knowledge of and now will not be granted a waiver again. so what happens is that he says i didn't know. if you let me in i will stick to my itinerary and now i know that i was deemed inadmissible and i think that's ridiculous, but i will follow the rules. and the secretary of state through the state department says, sure, okay, we will now recommend you to receive a waiver, but the ultimate decision is made by the attorney general and attorney general john mitchell in the nixon
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administration says no and refuses to grant the waiver. so what i do is i tell a little bit of that story, the outrage by academics that called this censorship and say that this is an infringement of academic freedom and damages the reputation of the united states. all those arguments i talked about before are articulated and the concern that by 1969 we should not be returning to the days of mccarthyism where you have exclusions under the mccarran-walter act under these provisions. what are we still doing in 1969 excluding a scholar like ernest mendel. so what is intriguing, what makes this case so important, is the challenge, the legal challenge to his exclusion. now, what i explain in earlier chapters, so during the war on anarchy i mentioned before about
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the alien immigration act of 1903 which bars anarchists. that is actually the first ideological exclusion law in the united states. the supreme court in a case in 1904 upholds the exclusion of a british anarchist named john turner and what the supreme court says is those seeking entry to the united states have no constitutional rights, including under the first amendment. and so they can't challenge their exclusion under the first amendment. so ernest mendel has no rights, has no constitutional right to enter and no constitutional right under the first amendment to challenge his exclusion, but what about those within the united states, including the professors who invited him to come and give a talk at their university or college campuses?
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and so the most famous first amendment attorney in the united states at that time leonard budine along with a young attorney named david rosenberg challenge mendel's exclusion as a violation of the professor's first amendment right to receive information to hear. so under the first amendment you have the right to speak as well as the right to hear and to receive information, and the precedent that establishes that right to receive information and right to hear happened in the 1960s. so they're using recent precedent to make this argument and also to circumvent that john turner case and the supreme court's decision. so they're going to argue that mendel's exclusion violates those within the united states,
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their first amendment rights. and the case goes up to the supreme court and the supreme court, although upholds the exclusion of ernest mendel also upholds the right of these professors or those within the united states to challenge exclusion based on the violation of their constitutional rights under the first amendment. and we still use that pathway today, using this precedent to challenge exclusion. also the supreme court in decision by justice harry blackman issues a new test. now, before the attorney general didn't have to give a reason for why he was denying the waiver. what justice blackmun says you have to get a legitimate and modified reason for denying that waiver. that's a low standard. that's lower than strict scrutiny or any first amendment speech to protect the standard. but it's a standard, nonetheless.
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and it does require a reason. it's the standard that we use today. so this is a foundational case. very important precedent that is set with earnest mandel and so unfortunately earnest mandel is excluded, we do have the new standard and the new pathway to challenge exclusion. what is also significant is that this is part of the nixon administration effort to suppress the dissent on college campuses and protests as well as part of using immigration law as a tool and part of his abuse of power. at the same time the nixon administration excludes w.e.b.
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debois' widow from the u.s. and attempts to deport john lennon from the united states, and what i call selective deportation targeting individuals for their deportation based on their beliefs or associations or expressions which violates the first amendment. that's something a lot of people don't know about the nixon administration and the attempt to deport john lennon but is part of that story and part of the narrative as a tool of political oppression. >> thank you. there are hands in the queue, but i have a few more questions before i turn it over to those folks who are watching. oppression could be extensive with, as you show. as you also show, it had limited. and your discussion on the
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activist anarchists emma goldman is fascinating. she emerges in the headlines in 1892 following the shooting of henry clay frick by her partner in the context of the home line strife. she returns to the headlines following president mckinley's assassination. and yet despite surveillance, harassment and persecution, she remains a public figure, and she continues to write lecture widely, and you quote her at one point saying that "nothing helps a movement like suppression." and ultimately she was imprisoned and then deported during the red scare in late 1919. shipped off on the "s.s. buford." the soviet -- or the red arc, shipped off to the new soviet union. can you talk briefly about goldman? and how she managed to escape some of the worst of the crusade for years.
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and then what changed? well, this is -- goldman is a fascinating case. and what is so interesting about her story and why the long narrative is so important is that it takes a long time to get her out of the country. the government is determined to rid the united states of this notorious anarchist emma goldman. and emma is an immigrant from lithuania, which is part of the russian empire and comes in the late 19th century. she's radicalized by the hay market affair and becomes the leader of the anarchist movement in the united states. when i talked about the war on anarchy, it's the suppression of anarchists in the wake of the assassination of president mckinley in 1901 by a self-proclaimed anarchist who was born in the united states but he has a foreign-sounding name.
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again, we had conflation between the foreigners and the dissenters of radicalization of the fear of subversion by those within the united states and those coming from the outside. he claims that emma goldman's speeches set him on fire. and he attended one of her lectures and this inspired him. they cannot link emma goldman to the assassination of president mckinley. he admits he acted alone and that goldman had no idea what he intended to do despite her -- she's arrested, the authorities have to let her go. they cannot link her to the assassination. but there's a determination that she has to go. there is an effort to deport her. and this takes a long time.
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this -- i talked a little bit about how this deportation and denaturalization go hand in hand. and this becomes the problem in efforts to deport her because she is a citizen of the united states. in that she claims citizenship derivative citizenship through her husband. all though estranged for many years, her husband also claims derivative citizenship is what prevents her from being deported. so she is a citizen and has a long residency in the united states, and so i tell this that she is a citizen and has this through her husband. so i tell that story in chapter two. but she is deemed a citizen through her husband. and so what happens is that in 1909, the united states
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successfully denaturalizes her. how? by denaturalizing her husband. and breaking this derivative citizenship. so you can denaturalize by fraud, misrepresentation during the naturalization process, or to prove lack of attachment to the principles of the constitution. so they attack her husband's citizenship through fraud or misrepresentation, and she is denaturalized by 1909. she has a long residency within the united states. so what happens is that she is able to stay. they have to find grounds to deport her. and under the exclusion deportation laws of the time, you can -- there are limits to deportation. so under the law, it's three years after entry that you can deport.
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so the law changes to expand in 1917 to five years and then there's a major change in the law in 1918 under the anarchist exclusion act, which provides for deportation for anarchists at any time. no matter how long they've been in the united states. so j. edgar hoover was getting his start, this young whippersnapper who helped a. mitchell palmer round up radicals and attempt to deport them in the palmer raids, his first effort is to try to deport emma goldman and he knows he can, because she was denaturalized in 1909 and she's eventually with her comrade deported on or in 1919. under the alien exclusion act. >> thank you. let me pose one last question before we open it up and fast forward to the very recent past/present. so the 21st century, as you
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showed forward with -- the 21st century, as you showed at the end of the book saw a serious revival or extensive use of the practices that you recount in the book. as the end of the cold war is then followed by a new open-ended war on terror. can you talk specifically about continuities and discontinuities. what remains the same and what changes? >> okay. a lot remains the same. so let me go back to right after the earnest mandel decision. because what i do is talk in the book in chapter 7 and chapter 8 this transition period from anti-communism and the cold war to the war on terror. and the shift from communists being the object of fear to terrorists and the use of anti-terrorist provisions to exclude or deport. we mentioned before we took the
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class with earnest mandel in 1979. and that was possible because some of the laws were beginning to change in the 1970s. so by 1977, there is an amendment to a federal statute that provides more protections for those seeking entry to the united states and more strict oversight to the waiver process. and so it requires those inadmissible under a particular provision in the mckaren walter act, section 212a28, which mandel had fallen under. that waivers could only be denied if there was some kind of security threat. they can demonstrate this omission would pose a threat to national security. and so what that means is that
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earnest mandel would have been granted a conditional visa and a waiver under this change and would have been able to temporarily stay to teach that course in 1979. but that wasn't a big change. when i explain in the book is that the provisions, the security provisions and ideological exclusion hangs on through the mccarren walter act through the 1980s. and we see their efforts lead by organizations like pan america and the american civil liberties union as well as efforts in congress led by congressman barney frank to repeal those provisions and ideological exclusion. there was not an incentive to do so because nobody wanted to appear soft on communism. and there was no incentive for
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those within congress to repeal those provisions. we see a little bit of an opening of the 1980s as the cold war is coming to a close. now frank and these organizations are largely successful but they also open the door at the same time to the threat of terrorism and provisions in the law that shifts from anti-communism to anti-terrorism. we see the use of anti-terrorism provisions and material support to terrorist organizations and foreign -- designated foreign terrorist organizations beginning in the late 1980s and through the 1990s. so when we think about the entry of the war to the war on terror after september 11th, we really do need to think about the shift and the concern about terrorism and anti-terrorism provisions in
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the 1990s. that set the stage for the war on terror. now under additional existing provisions and new laws in the early 21st century, during the war on terror, like the usa patriot act and other provisions that provide for material support to terrorist organizations we have the guilt by association and interpretation of what institutes membership affiliation or support we saw in the 1950s and '60s in terms of communism shift to terrorism, and what i discuss in the book in the last chapter in chapter 8 is the use of materiel support to aid logically exclude critics of u.s. foreign policy and academics who are seeking entry to the ten conferences or take
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up academic appointments in american universities. and the expansive interpretation of what institutes a terrorist organization, terrorist activity, or materiel support can do to association rights and free expression rights to american citizens as well as the foreign noncitizens in the united states and those seeking entry to united states. i then conclude with the trump administration and extreme vetting. now some might recall that during the campaign that president -- then republican nominee donald trump, one of his
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campaign speeches, there was a reference to the cold war and the call for extreme vetting. there is a reference in the book that i include in the book where he says is, well, he says we have these ideological restrictions in the cold war and need extreme vetting. i remember watching that and going my goodness. let's see what happens. and lo and behold, during the trump administration, we have seen efforts to exclude and to deport a extreme vetting that is -- deport and use extreme vetting that is strikingly similar. what has changed is technology. during the social media, data collection and use of social media, there's a real concern that your affiliations, what you like on twitter, or facebook, expression that you carry around in your pocket and on you at all times through the laptop,
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through the social media handles and accounts can be used against you. either during the visa process, which requires you to disclose social media handles as well as at the border. so i provide examples of inspections of one's phone or laptop. this affects american citizens, too, but particularly those seeking entry to the united states. and the border control and officials from the department of homeland security can they also exclude you based on those expressions and what you say or what your friends say on social media? and that's the new frontier. when you find is that the motivations to exclude the underlying dynamics that you support abuse of power and the use of discretion in terms of who can be included an excluded
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and you can trace them all of the way through. that's still remains. that has remained unchanged. what has changed is technology. that's something to kind of look for but that's what also makes the history so crucial, which is when you understand this history and we understand this is a long history and that this has been consistently used as a tool of political oppression, you're more prepared to meet some of the challenges and some of the changes that we see today. >> thank you. we'll open this up. if you would use -- if you have a question, use the raise hand function and join the queue and thanks to those patient people who are already there and if you're watching on facebook or want to send us a question anonymously, you can write to our weekly or
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first up is cochair christian osterman who will open us up with a question. >> thanks. thanks for that fascinating conversation and congratulations on the book, julia. that's a real accomplishment. this is a scholarly forum. i think it's good to talk about our sources in this day and age. as historian, we don't just make up these stories and arguments. so i wonder if you can just talk a little bit about the archive and the other sources you consulted clearly over the, you know, given you go up to recent times and different sets of sources than those you use for the case studies earlier and in the last century. so talk a little bit about your source if you don't mind. thank you. >> thank you so much for the question.
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i use the interdisciplinary approach as i drew on my training in law and in history and i think it really makes a difference. i think that not only was i able to include analysis of statutes as well as court decisions, briefs and legal arguments, but also to use archival research as well as information i obtained through a freedom of information act, and all of that combined enabled me to tell this story and be able to call it a legal, political and social history. it was very important for me to include those who were excluded or deported as well as those representatives and those who sought to exclude them. you would not just see those who were seeking agency for those who were excluded or deported as well as the representatives of those who sought to exclude or deport them.
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this was not going to be just a series of laws and a series of cases. but you are going to see also the public responses as well as agency from those who are facing exclusion and deportation. the best example of use of this interdisciplinary approach is that mandel case in chapter six. that's where i was able to file a freedom of information ability -- act to obtain his immigration records. although there were a lot of redactions, i was able to piece together a little bit through internal government documents what the conversations were as well as going into the national archives and finding more information about john lennon's facing deportation and the documents there pertaining to why john lennon faced deportation and the efforts behind it as well as the shirley grand du bois' exclusion.
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that archival research was central. the most exciting revelation was when i went to the supreme court archives, their papers at the library of congress, and i went and i looked at not only the earnest mandel decision blackmun's opinion as well as the dissents and those dissents in that opinion were justice thurgood marshall, justice brennan, and justice douglas, and i mentioned marshall because what i discovered by going into the papers of the justices is marshall was initially slotting to writ the majority opinion upholding mandel's exclusion and changed his mind. that he was set to write that opinion and to be part of the majority then wrote to the chief
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justice and said i'm sorry i have to change my mind. i'm not in accord with the chinese exclusion case and the authority granted to congress and i include the text of that letter, which i found. and you discover that it's a huge revelation in terms of back story of what was going on in the terms of the behind the scenes of that decision. the fact that marshall changed his mind because of the plenary power doctrine, that chinese exclusion case accomplishes the doctrine and the authority and judicial deference. by going into the archives and, also, looking at some of the notes that justice blackmun
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and some of his concern that led to his opinion and also his formulation to that standard. that was a revelation. and and there is not one book that had provided that behind the scenes. the only reason i am able to provide that is because of that achival research. i recently was talking to law school student studying that decision and said had i focussed on the decision and blackmun's opinions and the dissents, i wouldn't have known about the switch or why. i wouldn't have known the information i can provide and we can use to help better understand that decision this presents and that is very much important today. >> great. thank you. >> all right. we have sara with a handout. if you would unmute yourself, you can pose a question. sarah? >> hi.
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i was going to ask whether you were going to address the harry bridges case, and you answered it very first up and i was delighted to hear that. i would say greetings from the francis perkins center. we're delighted to learn about your book. we'll order it for our library. >> that's terrific! thank you so much! it was important for me to include perkins as well as carol wise king in that chapter and in my narrative. i think they can often be overlooked. they're very important in the story. but to be able to talk about perkins and her role in the harry bridges case and coming under fire for her decision making. it was crucial. >> thank you. coming up next we have ron schatz. if you will unmute yourself,
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ron. you may pose a question. thank you very much. i found your remarks on harry bridges extremely interesting. i wanted to ask about one of his contremparies, who was also charged and often considered close to the communist party if not a communist member party and was in fact a member of the union, the left wing union than the long shoremans, which was the united electrical workers union and james mattis who was the secretary treasury of the ue, and was from romania. i am asking, did you encounter him? was he tracked as a communist, and if not, why not? because he -- i studied him, and i didn't encounter that sort of
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stuff. that's my question. >> okay. i'm not familiar but will look that up. i think if you read that information and look what i do in that chapter with bridges and not just focus on that case, but also by taking this long view i trace the line of the evolution of the law and the efforts to deport and those denaturalize and not everyone faced deportation or denaturalization, but many were still under threat. what is important in this, in this part of the story is that it really has to do with the ( interpretation of the law, if he fell under the law, and also the efforts to root out subversives either through their memberships or affiliations, and also this concern about communists in the labor movement. and it was part of the effort to
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suppress the labor movement. so everyone was using all the tools in the toolbox including deportation and denaturalization to -- as part of that effort. so thank you very much for bringing that to my attention. >> all right. sean martin, if you would unmute yourself. the screen is yours. >> thank you very much. thank you. this is a wonderful book. professor, i just really salute you for this because this is an area that was very, very fertile during the time i was in the university in the 1950s. i am wondering if the trump administration is developing its own exclusion model, and the reason i ask this is because in the month of july the same month that your book came out, we deported three nicaraguans who
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were seeking asylum fromt the sand the middle eastas, without giving them a hearing of any kind. and it seems like an outrage. i wonder if you have any, you know, indication of that in your book as a case study or were you aware of this executive order that seems to be excluding people? >> well, thank you very much. i think what we are analyzing as historians and specifically immigration historians looking at the trump administration, the heart of what we will be discussing is immigration, immigration restrictions and deportation. and i know that i
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am closely following along with those who are immigration lawyers and historians what is happening to asylum seekers to refugees and those inside the united states and outside the united states seeking entry and the policies that are the main architect policies of steven miller. what i do in my story -- it is a long view, but it is a narrow view in terms of looking at deportation idealation. as i take it through the trump administration to explore what i mentioned before extreme vetting, but also what i cover is the travel ban also referred to as the muslim ban. looking at that decision. focussing on the use of discretion to suspend entry, and the provision in the mccarron/walter act that president trump used. you get a better sense of understanding that the decision, i think, when you know the
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history and you know you can trace a little bit of this law through, which is why i fought hard to include the travel ban decision and take it up through the trump administration. what i would say in terms of exclusion -- i mentioned before exclusion extreme vetting and the excludeing at the border what i would say we need to pay attention to that selective deportation i described and retaliatory deportation. right now there are efforts to suppress dissent. we've had lots of protests and criticism of the government and the trump administration and not only do we see suppressive efforts to the right to protest and for those within the united states, american and noncitizens, but the threat of deporting or using participation in protests or expression of
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dissent to deport or to target those who are vulnerable to deportation or already under the threat of deportation. it's something to watch. i think moving forward where my story can contribute is to say we need to pay attention to ideological exclusion and deportation. that's part of the story. it should be a focus when we look at deportation exclusion efforts to understand this history and also to understand the motivation behind excluding and deporting, which could be suppress dessent as well as should be part of immigration reform. as we move forward and are dealing with more restrictions or attempts to roll back the restrictions we've been seeing over the past four years and look at immigration reform this discussion of discretion, oversight, and ideological exclusion deportation should be part of us moving forward and
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part of immigration reform efforts as well as looking at new restrictions. >> thank you. we have a question that came in over e-mail. from stanislas stannic, and did you look at the travel abroad for citizens? >> absolutely. it covers everything and i realize as i talked with my editor about which is part of the story. the same way we talk about the goal here is that when we talk about immigration and we talk about first amendment and we talk about suppression of dissent, ideological exclusion and deportation is part of that story. it's part of immigration history and law in this country and part of first amendment law and history and civil liberties history in this country.
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that's the purpose of this book. but also in terms of restriction of travel, restrictions to american citizens are part of the story, too! and are very important in terms of suppression efforts and what we considered containment. now, i describe in the -- those, in chapter 5, the iron curtain of the west, and that's in the reports of those abroad who refer to the united states creating the iron curtain of the west due to the ideological exclusions, but also could apply to restrictions of passports at the time. restrictions of passports are important when we think about communism. i should note that leonard who i mentioned renting the american
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professors was the one who also argued the case in terms of your dulles which was brought up by the supreme court and the supreme court struck down the restrictions on passports of american citizens as violating the fundamental right to travel. so by the time that dean is getting to the mandela case, he's bringing the precedent he helped to establish with him. >> thank you. michael goodman, your hand is up. please unmute. >> hello, my question is this. i'm going ask about cases that occurred as late as the reagan administration regarding exclusion.
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one case that i recall reading about is an uraguay professor who was seeking a post at the university of maryland and he was denied entry into the u.s. allegedly because of communist party membership there. and another example i recall also from the reagan years was a woman named norah estorga who was nominated to be nicaragua's ambassador to the u.n., but under pressure from the reagan administration, i believe that she was asked not to assume her post at the u.n. you know anything about those two instances? thank you. >> thank you very much. i'm not familiar with the instances but i'm not surprised. that's what you'll find in chapter 7. i discuss reagan administration's use of the mccarron/walter act to exclude. i go into the intricacies of how
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they're using these statutes, which statute and provisions they turn to because what they are trying to do is they are trying to circumvent the # protections i mentioned before in terms of 1977 and the mcgovern amendment which prevents denial of waivers and inadmissibility, and they are using another provision of the mccarron/walter act to exclude, and they are asserting that this is also justified as a part of the american foreign policy. and that, the entry of these individuals would somehow interfere with the american foreign policy, and there a lot of pushback. there is pushback from the courts which take up some of these cases of exclusion as well as pushback from congress and organization like i said before,
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pan america and the american civil liberties union, so it is great to learn more about those who were excluded, but if you are interested, i would tell you definitely to check out chapter 7 in my book for more information about the reagan administration, and what they were doing, and the response to it. >> thank you. eddy has been patient. if you up mute yourself, you may pose a question. >> yes. can you hear me? >> yes. >> i wanted to ask you whether there was anything in the book that traces what happened to those who were deported and in this context my great aunt and my great uncle who were involved in a strike in pittsburgh, and -- under em -- they were part with emma goldman
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in a ship that went back to the soviet union and then killed, both of them were killed by stalin once stalin got control. >> well, thank you so much for all of the personal stories and this connection to this history. i had to make some tough decisions in terms of what i wanted to include in the book because i was -- this is such a long history. and it's not a very long book. there were limitations in terms of pages and length. because i am taking it from 1798 to the war on terror, i had to be kind of ruthless, and part of the decisions were not tracing necessarily what happened to those who were deported. now i do talk about what happened to emma goldman and alexander burkman, but i found that i had to be careful about kind of taking the stories too far. because i would not be able to
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do what i needed to do, and provide the details and discussion of the law within some of these constraints. i will say that something that is very interesting is that those who faced deportation were not always deported. those who were unable to be deported because the country that they were originally from refused to accept them or close the borders. so some had to remain in the united states. others under threat of deportation decided that rather risk persecution in their country of origin to be deported, which arranged to be deported to another country as a form of asylum, or a form of asylum in another country.
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i provide information, in particular cases about that. a choice to kind of self-deport or elect to be deported to another country that is safer or those who just never made it and had to remain in the united states. but i had to call a halt to some of my discussions. thank you. >> now we have anita pannedia, if you would unmute. go ahead, if you would. unmute. you are now unmuted. but we can't hear you. okay. we are going to move on. john martin's hand is back up. john, unmute and rejoin the conversation.
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john? >> what's different about these nicaraguan deportations is that they are being deported to a regime which tortures its opponents and all three of these people have been involved in, you know, anti-regime activities and as the human rights watch reports and all sorts of people report, we are deporting people and we are deporting them and they are being tortured. it seems -- >> yes, and that is a huge concern. i mean, this is why we have asylum. there is a real concern about not only efforts to deport to
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prevent those who are seeking asylum from staying, or sending them to third countries. so this is a huge issue and i know that there are immigration lawyers who are working tirelessly to challenge these restrictions under the trump administration and to try to prevent these deportations. now, in terms of my own work, i would direct you to chapter 3 and chapter 4 when i talk about the deportations delirium in the wake of the palmer raids and the efforts to deport, and lewis post who is the assistant secretary of labor who was trying to prevent deportations. as well as chapter 4 where i talk about in the 1930s this is a real concern. you know, many people who are facing deportation under federal laws that are afraid to be
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deported back to fascist countries and face persecution and so there is major publicity and efforts to prevent their deportation and there are those who are saying why are you deporting me to only die once i arrive and to be persecuted? so this is a very big issue, but especially in terms of my narrative in the 1940s when there's a real concern about the countries they are being deported to and will they be persecuted because of their identities and their beliefs and their expressions of dissent. so this is a very important history and the more we learn about immigration history the more we are prepared to tackle the challenges of today. >> thank you. ameet's hand is back up. so, again, if you would unmute yourself, you can pose the question.
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go ahead, please. i think we have a technical problem. i'm assuming at ameet's end because we can't hear. >> do you think that maybe he can type it? >> if it comes in we can pose it. well, let me -- let me perhaps try to wrap up with a question that looks back and looks forward. you make it clear in the book and in the talk that who is in office matters. some administrations use ideological exclusion and deportation more forcefully than others. it mattered that francis perkins was labor secretary under roosevelt in the 30s and you just mentioned lewis post, it
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mattered that he was assistant labor secretary during the red scare, both officials took stands against anti-radical hardliners. we are coming up on a presidential election apparently, early voting has begun in a number of states. so i want to talk about where you see ideological exclusion and deportation going. presumably a trump victory would see more of the same, a heavy hand, a heavy reliance on this, but what about a biden victory? would a democratic win this time around result in reforms that the challengers that you've highlighted in this book have been seeking, and if not, why not? >> okay. that is a great question and that is something that i focus on in the book, which is we've created a system where not only have we insulated immigration
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from some of the due process protections that we enjoy under our criminal system, immigration is considered a civil matter and not a criminal matter so we don't have the same kind of due process protections that we would have under the fifth amendment in a criminal proceeding, and we also don't have, again, that substantive judicial review because of the insulation by the plenary powered doctrine and that's something that has persisted. we are not subjecting these ideological deportation cases to strict scrutiny or the same level of speech protected first amendment standards. and so that is something that's important and that the courts have kind of upheld so far and have upheld the plenary power doctrine and the deference, it
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has deferred to the discretion of executive -- of the executive branch and public officials, including the president and congress. so what you have -- what i emphasize is who is in power, who is official, who are consular officials, who the president is, who the head of the justice department is, all of this really matters because of this judicial deference to the determinations by those officials, and the guidance they receive to make those determinations, who gets a waiver? who doesn't? who is admitted? who isn't? who is at the border who is examining your visa and has the power to deny you entry? who is that individual? where is the oversight? and so what i have concluded is that not only does it matter, and i show that it matters who
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is in power and who is making those decisions, but also where you can get recourse. we found that not necessarily through the courts, that especially after the travel ban decision that it's really up to congress to make changes to the system. if the courts are not willing to relook their adherence of the plenary power doctrine and will continue on this deference to the executive and legislative branches, then we really have changes made by congress to those statutes and protections and more oversight and that's really going to come from immigration reform. i think where we see the future is that, that we're not going to be looking to the courts but to congress, and i would draw your attention to something i include in the book called the no ban act which is addressing the travel ban, repealing the travel ban, but also provides much more oversight and requirements to
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justify exclusion and suspension of entry and raises the standard of scrutiny to those decisions. that's a pathway forward, but i should also mention, too, though, in discussions this is going to take a lot of work. those who are saying the biden administration we can roll back everything, it's going to take a lot to roll back what we've seen in this administration as well as what we've seen in previous administrations, this administration has done quite a bit to restrict, but it's also building on the past. so we have a lot of work to do, but i think it's going to have to come through congress. >> thank you. and with that i will have to draw this to a close. let me just say, julia, that i thoroughly enjoyed this conversation. c-span's is c-span's online store. your purchase will support our non-profit operation


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