A Quiet Victory for Latino Rights: FDR and the Controversy Over "Whiteness"

8. Applying Administrative Law to the Andrade Decision

139 8 Applying Administrative Law to the Andrade Decision state department legal adviser green haywood hackworth was not as prolific as Flournoy in his writings, but if the writings of others are any indication, Hackworth was better known than Flournoy and at least as well respected for his knowledge of international law. Although Hackworth was a Democrat, President Coolidge appointed him to the position of State Department solicitor in 1925. In 1931, Congress changed the position to State Department legal adviser, which required a new presidential appointment. President Hoover appointed Hackworth to that position as well. In 1946, Hackworth became the first US judge on the International Court of Justice.1 Like Flournoy, Hackworth was one of the US delegates to the First Conference for the Codification on International Law in The Hague in 1930.2 And like Flournoy, Hackworth fit well as an adviser on the Andrade issue because of his expertise. Unlike Flournoy, however, Hackworth would appreciate the new direction that the State Department was about to take with respect to using the technocratic approach to solve their problem. Between December 1935 and July 1936, State, Labor, and Justice Department officials, along with those from the Mexican Embassy, went to great lengths to postpone and even overturn Judge Knight’s decision denying Timoteo Andrade US citizenship. Despite their 140 a quiet victory for latino rights obvious concern that Knight’s precedent not be applied to further naturalization cases, the three administration departments mishandled the situation after July 1936. They allowed it to become a lowpriority issue and, in fact, may have even forgotten about it totally until the federal judges began to force the issue in March 1937. The McClatchy-Knight Precedent Reemerges On Monday, March 15, 1937, representatives of the Labor Department went to the State Department’s offices to discuss the situation with legal adviser Flournoy. They reminded him of both the Andrade situation and the fact that several naturalization petitions had been put on hold before the US District Courts for the Southern (New York City) and now the Eastern (Brooklyn) Districts of New York. Although the naturalization examiners in these cases had managed to postpone the hearings, the judges had grown impatient and wanted to continue. Far worse, these judges were likely to issue rulings consistent with Judge Knight’s December 1935 decision.3 Hackworth and Flournoy brought this new information to the attention of Assistant Secretary of State R. Walton Moore and Edward Reed, chief of the Mexican Division, and reminded them of where the situation had been left in July 1936. Flournoy had to summarize the entire situation in detail to remind his superiors of the origins and importance of the current problems. Most important , Flournoy reviewed Knight’s June 1936 ruling granting Andrade citizenship and stated that it was not likely that the pending cases could be resolved in the same manner. Other judges, he believed , would be obligated to deny the pending petitions based on Knight’s first ruling, in the event that the cases could not be further postponed before the State Department could formulate a solution to the problem. Flournoy had spoken with Henry Hazard of Immigration and Naturalization regarding the orders given to the naturalization examiners to avoid raising the issue of racial ineligibility. Flournoy asked whether these orders would be sufficient to prevent further decisions consistent with Knight’s or if the judges would deny petitions even if the assigned examiners did not oppose them. Hazard Applying Administrative Law to Andrade 141 replied, “the Judges would insist that the Naturalization Examiners submit with each case a brief setting forth their views and containing ‘findings and recommendations’ as to the eligibility of the applicants under the law, as provided in [the current US naturalization laws]. Thus it appears to be impossible to dodge the issue.”4 Arguments over Potential Legislation As the legal advisers briefed Moore and Reed, these State Department officials proposed only one potential solution, the same idea that they had already let fall by the wayside: to amend existing legislation to remove racial barriers to naturalization. While Flournoy did not bring up the issue in any of the State Department memoranda regarding Timoteo Andrade, he was in a perfect position not only to advocate such a change, but to make one happen. On April 25, 1933, President Roosevelt had issued an executive order that established a committee to “review the nationality laws...