For two decades, Peter Schuck, Simeon E. Baldwin professor at Yale Law School, has been one of America’s most perceptive and provocative scholars of immigration law and policy. This book collects much of his previously published work on various features of America’s immigration system. The result is excellent—perhaps the best single source for a cogent outline of current law and its origins, as well as a sophisticated and engaging analysis of many important contemporary policy issues.
The first of the book’s five parts briefly summarizes the U.S. immigration system. Part 2 deals with the courts, focusing on the unique restrictions on judicial review in the immigration context. Part 3 addresses the politics of immigration reform, exploring major state and federal legal initiatives in the 1980s and 1990s. Part 4, entitled “Citizenship and the Community,” reflects Schuck’s concern with the “devaluation of American citizenship.” He also discusses the problems of dual citizenship, and America’s history of liberally granting citizenship to those born in the United States, even to children of tourists and those here illegally. Schuck deals with a number of political controversies in part 5, titled “Current Policy Debates,” including the relationship between new immigrants and African-Americans, the international refugee problem, and nativist objections to the brown and yellow immigration since the landmark Immigration and Nationality Act Amendments of 1965 eliminated race as a formal criterion for entry.
The book demonstrates Schuck’s intellectual curiosity and breadth; the multidisciplinary nature of Schuck’s work is a particular strength. Some chapters are based on law review articles, such as chapter 2, which reprints his influential Columbia Law Review essay, “The Transformation of Immigration Law.” However, Schuck’s work extends beyond traditional legal case analysis. Chapter 3 reports the results of his empirical analysis of the court system’s treatment of claims by aliens; chapter 4 is a work of political science, describing how interest group politics led to liberalizing reforms of federal immigration law in the 1980s. Chapter 14, “Alien Ruminations,” draws on Schuck’s detailed and extensive knowledge of the economic and social scientific research about immigration to explode the factual assertions of nativist critics of liberal American immigration policies. Many parts of the book draw on legal history.
Like American immigration policy itself, Schuck’s work betrays both appreciation of immigration’s benefits and concern about its potentially problematic consequences. Schuck proclaims that immigration “has served America well,” but in the same paragraph hints at a shadow of doubt, arguing that “policy should assure that a larger share of the immigration flow consists of individuals who are most likely to succeed in the American economy of the twenty-first century” (358). The explanation may be less that Schuck is inconsistent and more that he is honestly trying to come up with the best policies he can identify. Thus, some of his arguments will appear quite conservative when compared to the human rights/due process immigration scholars who are prominent in the field. Other observations are surprisingly internationalist and liberal, such as chapter 10’s defense of dual citizenship.
Schuck’s policy recommendations tend to focus on procedure and structure, like how aliens should be admitted or expelled, and what rights citizens should have compared to resident aliens. When dealing with substantive questions, like who and how many should be admitted as immigrants, Schuck is sometimes content to identify and analyze a problem rather than offering his solution. For example, a recurring theme in the book is the importance of dealing with “illegal aliens.” (Schuck’s rejection of the politically correct term is quite intentional; under the index heading “undocumented aliens” the reader is instructed to “See Immigration, illegal.”) He excoriates the federal government for failing to police the border and deport criminal aliens, but these failures resulted from administrative ineptitude and lack of resources, not because of any doubt that they were desirable goals (342). Chapter 9 reaches the heart of the matter: drawing on history and policy, Schuck argues that the Constitution does not entitle the children of “illegal aliens” to citizenship just because they were born in the United States. But he stops short, admitting that he is “genuinely uncertain” about whether Congress should exercise the power that he argues exists to restrict citizenship by birth to children of citizens and lawful permanent resident aliens (215).
Similarly, in chapter 11, “The New Immigration and Old Civil Rights,” one of the most intriguing chapters in the book, Schuck observes that the growth of Latin and Asian-American communities may harm African-Americans and disrupt the liberal democratic coalition. “Ethnic demography is political destiny,” he writes, and “by that remorseless standard, blacks are steadily losing power relative to other groups” (253). As voters, competitors in the labor market, and competitors for political victories, immigrants who are neither white nor black may complicate life for African-Americans. Schuck notes that “the fact that some of these immigration stories (or myths, if you prefer) are false is less relevant politically than the fact that they tend to undermine the group claims and status of blacks” (258).
Schuck’s clear analysis and careful marshaling of the relevant facts will help the readers reach their own conclusions; for that reason, the chapter is certainly worthwhile political science in and of itself. But it raises the question: should the number of visas be reduced to protect African-Americans, or would it be unjustifiable to limit immigration of people of color? Schuck does not say, perhaps implicitly concluding that some issues ultimately must be left to the values, principles, and political judgments of voters and policymakers.
Where Schuck does make affirmative policy recommendations, they often reinforce the impression that he is an analyst more than an ideologue, a pragmatist more than a utopian. Chapter 13, revealingly subtitled “A Modest Proposal,” argues that the world refugee problem could be addressed in part by a “play or pay” program under which wealthy countries such as Germany or Japan could compensate countries that were reasonably safe but less desirable as immigration destinations to take refugees off their hands. In Schuck’s view, this approach is realistic and more likely than any other to deal with the crisis of displaced persons, but it is also a concession that broader recognition of international responsibility for refugees is unlikely.
Schuck’s impact on immigration policy includes teaching students who have become professors of immigration law and offering testimony before Congress. This book shows that his scholarly influence is also well deserved. Scholars and policymakers will have to account for Schuck’s views whether or not they ultimately agree with them; persons learning about the field will find Schuck’s book an ideal means of understanding contemporary policy issues, and the origins and structure of the law.
By Peter H. Schuck