The Trump administration asserts the executive branch has nearly absolute authority to remove immigrants, including any that it claims have advocated for Palestinians.

The White House has cited legislation passed during the peak of the nation’s Cold War hysteria, like the McCarran-Walter Act of 1952, which expanded the government’s deportation powers.

I’m a historian of immigration, U.S. empire and Asian American studies. The current removal orders targeting student activists echo America’s long and lamentable past of jailing and expelling immigrants because of their race or what they say or believe — or all three.

The United States’ current deportation process traces its roots to the late 19th century as the nation moved to exercise federal control of immigration.

The impetus for this shift was anti-Chinese racism, which reached a fever pitch during this period, culminating in the passage of laws that restricted Chinese immigration.

The influx of Chinese immigrants to the West Coast during the mid- to late 19th century, initially fueled by the California Gold Rush, spurred the rise of an influential nativist movement that accused Chinese immigrants of stealing jobs. It also claimed they posed a cultural threat to American society due to their racial otherness.

The Geary Act of 1892 required Chinese living in the U.S to register with the federal government or face deportation.

The U.S. Supreme Court addressed the constitutionality of these statutes in 1893 in the case of Fong Yue Ting v. United States. Three plaintiffs claimed that anti-Chinese legislation was discriminatory, violated constitutional protections prohibiting unreasonable search and seizure, and contravened due process and equal protection guarantees.

The Supreme Court affirmed the Geary Act’s deportation procedures, formulating a novel legal precept known as the plenary power doctrine that remains a key tenet of U.S. immigration law today.

The doctrine grants the executive branch latitude to deport individuals on national security grounds and the court ruled that Chinese immigrants posed such a threat to the U.S.

The doctrine included two key assertions.

First, the federal government’s authority to exclude and deport aliens was an inherent and unqualified feature of American sovereignty. Second, immigration enforcement was the exclusive domain of the congressional and executive branches that were charged with protecting the nation from foreign threats.

The court also ruled the deportation of immigrants in the country lawfully was a civil, rather than criminal matter, which meant that constitutional protections like due process did not apply.

The government ramped up deportations in the aftermath of World War I, fueled by wartime xenophobia. American officials singled out foreign-born radicals for deportation, accusing them of fomenting disloyalty.

Rooting out so-called subversives

Attorney General A. Mitchell Palmer, who ordered mass arrests of alleged Communists, pledged to “tear out the radical seeds that have entangled Americans in their poisonous theories” and remove “alien criminals in this country who are directly responsible for spreading the unclean doctrines of Bolshevism.”

This period marked a new era of removals carried out primarily on ideological grounds. Jews and other immigrants from southern and eastern Europe were disproportionately targeted, highlighting the cultural affinities between anti-radicalism and racial and ethnic chauvinism.

The campaign to root out so-called subversives living in the U.S. reached its apex during the 1940s and 1950s, supercharged by figures like anti-Communist crusader U.S. Sen. Joseph McCarthy and FBI Director J. Edgar Hoover.

The specter of foreign agitators contaminating American political culture loomed large in these debates. Attorney General Tom Clark testified before Congress in 1950 that 91.4% of the Communist Party USA’s leadership were “either foreign stock or married to persons of foreign stock.”

Congress passed a series of laws during this period requiring subversive organizations register with the government. They also expanded the executive branch’s power to deport individuals whose views were deemed “prejudicial to national security,” blurring the lines between punishing people for unlawful acts — such as espionage and bombings — and what the government considered unlawful beliefs, such as Communist Party membership.

While deporting foreign-born radicals had popular support, the banishment of immigrants for their political beliefs raised important constitutional questions.

In a landmark case in 1945, Wixon v. Bridges, the U.S. Supreme Court did assert a check on the power of the executive branch to deport someone without a fair hearing.

The case involved Harry Bridges, Australian-born president of the International Longshoremen and Warehousemen’s Union, who had led successful strikes and whose union also took progressive positions on civil rights and U.S. militarism.

The decision in the case hinged on whether the government could prove that Bridges had been a member of the Communist Party, which would have made him deportable under the Smith Act, which proscribed membership in the Communist Party.

Since no proof of Bridges’ membership existed, the government relied on dodgy witnesses and assertions that Bridges was aligned with the party because he shared some of its political positions. Accusations of “alignment” with controversial political organizations are similar to the charges made against foreign students currently at risk of deportation by the Trump administration.

The Supreme Court vacated Bridges’ deportation order, declaring the government’s claim of “affiliation” with the Communist Party was too vaguely defined and amounted to guilt by association.

As the excesses and abuses of the McCarthy era came to light, they invited greater scrutiny about the dangers of unchecked executive power.

Some of the more draconian statutes enacted during the Cold War, like the Smith Act, have been overhauled. The federal courts have toggled back and forth between narrow and liberal interpretations of the Constitution’s applicability to immigrants facing deportation — shifts that reflect competing visions of American nationhood and the boundaries of liberal democracy.

There are some striking parallels between the throttling of civil liberties during the Cold War and President Donald Trump’s crusade against foreign students exercising venerated democratic freedoms.

Foreign students appear to have replaced the immigrant union leaders of the 1950s as the targets of government repression. Presumptions of guilt based on hyperbolic claims of affiliation with the Communist Party have been replaced by allegations of alignment with Hamas.

As in the past, these invocations of national security offer the pretext for the government’s efforts to stifle dissent and to mandate political conformity.

Rick Baldoz is an associate professor of American Studies at Brown University.

This article was originallypublished on theconversation.com

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