An important starting point in the history of deportations under general immigration policy came in 1885, in a law known as the Foran Act, which did not actually contain a deportation provision.80 Much of the support for this law came out of the ways white working-class Americans understood free labor, rights of contract, and immigration. As more Americans began working for wages after the Civil War, union organizers increasingly criticized the notion of “freedom of contract,” the idea that a worker was not only an equal participant in making a contract with an employer, but that the ability to contract at all made him free. White unions argued that employers had so much more power than individual workers that the bargaining process was subject to considerable coercion; coercive contracts, in turn, made white American workers “unfree.”81 U.S. labor leaders saw union representation in negotiations as a way to make contracts fairer, and they saw immigrant labor contracts as a threat to their ability to bargain with employers. To them, foreign laborers of any ethnicity who signed contracts abroad were unfree—and the contracts foreign workers signed with American employers were more coercive than contracts signed in the United States. Competition with unfree labor, labor organizers claimed, would inevitably enslave white working Americans, making the United States a nation of unfree men unfit to participate in a democracy.
Figure 1. Bureau of Immigration’s depiction of immigration patterns contained in the commissioner general’s annual report of 1904. “Immigration into the United States from the Different Countries and Total from All Countries, During the Past 84 Years,” AR-CGI (1904).
Labor organizers had included some of these ideas about contract and free labor in their campaign for the passage of Chinese exclusion, and in 1884 they were using them to lobby for a law that applied to contract workers. In 1884, for example, Terence Powderly, head of the Knights of Labor and soon to be head of the Bureau of Immigration, spoke out against a group of Hungarian contract workers. “They work for little or nothing,” Powderly said, “[they] live on a fare which a Chinaman would not touch, and [they] will submit to any and every indignity which may be imposed upon them.… I believe this country was intended for a race of freemen and, believing that, I will always oppose the introduction of such men as are not capable of enjoying, defending and perpetuating the blessings of good government.”82 Here, those fighting to limit immigration of contract laborers used the rhetoric of national protection to justify the development of another immigrant exclusion.
Congress was unwilling to pass legislation to support bread-and-butter union issues such as the closed shop and collective bargaining, but it did support organized labor’s position on foreign workers.83 In 1885 it passed the Foran Act, which forbade all foreign workers under contract from immigrating to the United States.84 Under its terms, a foreigner could not, while still abroad, sign a contract to work for an employer in the United States.85
An amendment transformed the Foran Act into the basis on which immigrants from all racial, ethnic, and national categories became deportable. Immediately after the passage of the act, U.S. customs officers charged with administering the law began to report that they found it almost impossible to identify and exclude contract laborers at the borders. The act contained so few provisions for enforcement that Congress quickly passed several amendments to rectify its perceived shortcomings.86 The original law prohibited only the entrance of contract workers; agents had no power to remove contract laborers who evaded exclusion at the borders. Congress added a deportation provision in 1888.
Congress expanded the government’s power to deport immigrants beyond contract laborers in 1891. Back in 1882, the same year it passed the law authorizing deportations under Chinese exclusion, Congress passed another immigration law that applied to all other immigrants. This law created excludable classes, including criminals and paupers—people who could not lawfully enter the United States. This law, however, did not link the excludable categories with a deportation provision. If criminals or paupers made it into the United States, immigration authorities had no mechanism to deport them. In 1891, Congress passed an immigration law that linked each category with a deportation provision.87 From then on, all the existing categories of excludable immigrants, ranging from “idiots,” the “insane,” “paupers,” “polygamists,” “persons liable to become a public charge,” people convicted of a felony or other crime or misdemeanor involving “moral turpitude,” to sufferers “from a loathsome or dangerous” contagious disease, were all deportable.88 This law enforced exclusions only—it dealt with people who entered the country who should have been excluded in the first place.
It is not explicit in the records why, but policy makers made deportation proceedings of general immigration law different from those under Chinese exclusion. Under general immigration law, the Board of Special Inquiry, the three-member panel of executive officers, held a deportation hearing. This was solely an administrative hearing. If the board found an immigrant lawfully resident in the United States, it canceled the warrant of arrest. If the board found the immigrant in violation of immigration laws, the agent assigned to the case applied to the commissioner general of immigration for a warrant of deportation.89 Here, the government had expanded the plenary power—courts did not have the power to review these deportation decisions. These proceedings were less expensive, they did not operate on facilitative payments, and immigrants had fewer rights to appeal to the federal courts. Immigrants could appeal a case to the federal courts only if they asked a new legal question, such as the constitutionality of a law.
In 1903, Kaoru Yamataya, a sixteen-year-old from Japan, appealed her deportation under general immigration policy to the U.S. Supreme Court in Yamataya v. Fisher (also known as the Japanese Immigrant Case).90 Yamataya had landed at Seattle on July 11, 1901. Four days later, immigration authorities arrested her on the grounds that she had entered the country surreptitiously and was likely to become a public charge—a deportable category under general immigration law—though she had come to stay with her uncle. Ten days after Yamataya’s arrest, immigration officers convened a Board of Special Inquiry to hear her case. The three immigration agents, none of whom was a judicial officer, held the hearing in English, which Yamataya could not understand. The board found Yamataya deportable.91 Yamataya appealed her deportation decision through the lower federal courts and then on to the Supreme Court. When in front of the Supreme Court, Yamataya posed several questions that cumulatively asked: were the deportation proceedings of general immigration policy legal?
Yamataya’s case to the Supreme Court, argued by lawyer Harold Preston, included two key arguments about the nature of due process under general immigration deportations. First, Preston argued that, since the Immigration Act of 1891 did not explicitly provide for due process, the act was unconstitutional.92 Second, Preston contended that even if the Court found that general immigration policy was consistent with Fifth Amendment due process rights in civil cases, immigration agents had denied them to Yamataya. The evidence used against Yamataya, as Preston described it, was “garbled, incomplete, and in many respects misleading and untrue.”93 Furthermore, Yamataya’s hearing had been conducted in English, and the investigation was carried out without her having access to legal counsel or the chance to show she was not likely to become a public charge.94
The Supreme Court dismissed Yamataya’s appeal and upheld the basic scope of the government’s deportation policy under general immigration law. Addressing her lawyer’s arguments about due process, the Court upheld the general immigration law in spite of its lack of explicit provisions for due process consistent with the Fifth Amendment. Justice John Marshall Harlan, writing for the Court, held that an act of Congress “must be taken to be constitutional unless the contrary plainly and palpably appears.”95
The Court also dismissed part of Yamataya’s argument that challenged the appeals process under general immigration policy. The Immigration Act of 1891 stated that immigrants could appeal the Board of Special Inquiry’s decision to the U.S. secretary of labor, whose decision was final and not