Immigration Law in a Historical Context--The Texas Proviso
While re-reading my earlier post below, it strikes me how far and how quickly we as a country have traveled in what appears to be our mindset and general reaction toward the politics of immigration. It doesn't take a legal scholar to observe the fact that the topic of immigration and "immigration reform" serves today as a prominent flash point in our greater social conversation. Witness the fomenting of Lou Dobbs, and the extent to which both presidential candidates avoided the topic whenever possible during the general election campaign...and this with the Hispanic/Latino population emerging as one of the (if not THE) new, electorally-desirable political constituencies! We could of course debate for days why and how the topic of immigration stokes the visceral fires that it apparently does, but that's not really the point of this post.
The point of this post is to point out that it hasn't always been this way. We haven't always had communities waiting with baited breathe, wondering whether their town would be the next torn apart by an ICE raid. We haven't always had Minute Men independently patrolling the border. We haven't always had employers caught on the one hand with barely-functioning H-2A and H-2B programs, and on the other with extremely aggressive worksite enforcement raids.
In fact, until 1986 no law made it illegal for an employer to hire an undocumented worker. Can you believe it?! I986! And moreover, in 1952 Congress actually passed a law which said that it was specifically NOT illegal to hire an undocumented worker. (Immigration & Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163)). According to Stephen Yale-Loehr, this law became known as the "Texas Proviso", which meant that employers were free to hire whomever they chose, without having to verify an individual's eligibility to work. If an unauthorized worker was among the ranks of their employees, nobody knew the difference and the employer was free to go about business as usual.
Caveat: I'm certainly not operating under the delusion that, from an immigration perspective, everything was great back in the 1950s or before. In fact, opportunistic employers have taken horrendous advantage of undocumented laborers since the dawn of our modern economy. To this very day we're still fighting the battle to make worksite conditions safer all over our country. Instead, my reason for highlighting the fact that it wasn't until 1986 that we had a law on the books criminalizing the hiring of undocumented workers is to bring some much needed perspective to our country's legislative approach to dealing with immigration. As we move toward forming a plan for comprehensive immigration reform, we should keep in mind that our legislative framework for dealing with undocumented workers is fairly new, but in the relatively brief amount of time the laws have been on the books we've seen them act as a contributing cause to a great deal of human suffering and economic stagnation. We've changed our immigration laws in the recent past and we can do so again--hopefully this time with common sense solutions that allow our country to once again remember that we all, at some time, were immigrants.
