Who Belongs in America?: Presidents, Rhetoric, and Immigration

Chapter 7. Can the Alien Speak? The McCarran-Walter Act and the First Amendment

CHAPTER 7 Can the Alien Speak? The McCarran-Walter Act and the First Amendment James A. Aune A QUICK QUIZ: What do the following people have in common? French philosopher Michel Foucault, French entertainer Maurice Chevalier, the Right Reverend Hewlett Johnson, Anglican Dean of Canterbury, English poet Stephen Spender, English novelists Graham Greene, Doris Lessing, and Iris Murdoch, Polish poet Czeslaw Milosz, English political scientist Michael Polanyi, Argentinian writer Jorge Luis Borges, Chilean poet Pablo Neruda, Mexican novelist Carlos Fuentes, Pablo Picasso, the Belgian Trotskyist Ernest Mandel, Canadian Prime Minister Pierre Trudeau.1 The answer: All have been denied entry into the United States on ideological grounds. Even though Milosz, Foucault, Spender, and Polanyi were outspoken opponents of Communism, and Borges was a rightist, they all at one point fell under the suspicion of being Communists and were denied visas. In 1954 the American Psychological Association gave up a chance to host the International Congress of Psychology because they “did not wish to subject six hundred foreign psychologists to visa humiliations.”2 In the twentieth century, the executive branch of the federal government of the United States used denial of visas, deportation of aliens, and even denaturalization of citizens as tools to combat subversion. Despite 150 | aune some small victories for due process and freedom of speech in Congress and the courts, government power over immigrant speech and political activity remains largely unchecked by judicial review and is a glaring exception to the “rights revolution” effected by the Warren Court.3 The free speech dimension of immigration should be of interest to scholars of immigration and the presidency generally, because it was in the context of a debate over immigration and subversion that the current pro-immigration arguments dominant in both the major political parties were forged. After World War II, the Truman Administration tried desperately to create an internationalist foreign policy. The final failure of the administration occurred with the congressional override of the president’s veto of the Immigration and Nationality Act (otherwise known as the McCarran-Walter Act) of 1952. In this chapter I examine the debate over immigration between Pres. Harry S. Truman and his congressional opponents. My argument is that in the long run, Truman and his special presidential commission on immigration, formed in response to the congressional veto, were able to forge an effective reframing of immigration as a foreign policy issue generally and as an ideological weapon of the cold war in particular. His congressional opponents were limited to an increasingly unpopular defense of the Nordic racism of the 1924 immigration reforms. Dwight D. Eisenhower roundly condemned the racism of the 1952 act during his first presidential campaign, and his administration continued the gradual abandonment of national quotas that was completed in 1965. The rhetorical definition of immigration policy as a weapon of the cold war, however, meant that the free speech rights of immigrants and potential visitors to the United States were radically limited by the president, Congress, and the courts. Denial of visas on political grounds and lack of due process in deportation hearings—including most notoriously the use of secret evidence unavailable to defense counsel—remain as legal options for zealous executive branch bureaucrats. The chapter is structured as follows: 1) I examine the nature of immigrant free speech rights up until the 1952 debate; 2) I describe the key arguments on both sides of the congressional debate over the McCarranWalter Act; 3) I analyze Truman’s veto message and the report his special commission on immigration released on January 1, 1953; 4) I contrast Truman’s high-minded concern with immigrant rights in his veto message with the actual use of executive power against radical immigrants as part of his campaign for the Truman Doctrine; 5) I examine the argu- Can the Alien Speak? | 151 ments in the key Supreme Court cases upholding the “plenary power” of the executive in immigration matters; 6) I consider the prospects for improving the free speech and due process rights of immigrants as the semantic network in which the image of the immigrant is embedded continues to shift from a predominantly foreign policy frame to one of a global marketplace. Immigrant Rights in Historical Perspective As Gerald L. Neuman asks, the Constitution begins with “We the People,” but where does it end?4 For those who find the notion of “original intent ” a useful topos for inventing constitutional arguments, there...