Thursday, May 21, 2020
Guest blogger: Barbara Carrasco, law student, University of San Francisco
The COVID pandemic has exposed America’s long-standing racist double standards in immigration law. As the daughter of Mexican immigrants, when I first learned of the plenary power doctrine, I couldn’t help but feel offended and uncomfortable. The plenary power doctrine is akin to an incantation American courts recite when deciding whether to hear cases related to immigration legislation, policy proposals and enforcement procedures. It essentially allows the Supreme Court to shield blatantly discriminatory immigration laws from judicial review, citing “the nation’s self-proclaimed, absolute right to determine its own membership” as the reason for the bifurcation of Constitutional standards (Ngai 11).
As America’s number of confirmed COVID-19 contagions rise to more than 1.5 million, our government’s treatment of migrants has exposed the vile truth of this country’s double morality. In a statement released on March 18, 2020, ICE declared a temporary shift in enforcement priorities, stating it would “focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.” Although the shift in policy is a welcome step in the right direction, the fact that the shift was necessary to begin with is evidence that prior to the pandemic, President Trump and his administration’s immigration policy had as a priority the blanket criminalization of all migrants.
The problem with President Trump’s blanket criminalization of all migrants is that it gets us nowhere closer to solving the problem of illegal immigration and all its byproducts. One important byproduct being, this country’s absolute reliance on undocumented immigrants in order to keep America running and its absolute denial of it. If not the most damning, maybe one of the most egregious truths the pandemic has exposed is the fact that America’s economic survival is dependent upon the continued exploitation and oppression of undocumented immigrants.
The agricultural sector, along with the food service industry and the construction industry, is a clear example of how the U.S. economy is built upon the low-paid labor of those deemed “illegal aliens.” An estimated 50-75 percent of agricultural workers, those that “grow, harvest, and process the food we eat,” are here illegally. By virtue of their lack of legal status, these workers are ultimately robbed of their right to have rights, what with our courts invocating the plenary power doctrine to turn a blind eye to the plight of injustices undocumented immigrants face in this country.
To add insult to injury, on March 19, 2020, the Department of Homeland Security issued guidelines that identified the agricultural sector as a “critical infrastructure industry” whose workers, regardless of status, are deemed “essential.” Essential workers are then espoused with the “special responsibility to maintain [their] normal work schedule.”
The irony of being tagged “illegal” while at the same time deemed essential cannot be lost upon the American people. It should ring an alarm, wake people’s consciousness to the inherent injustice embedded in our country’s current immigration system. People must not forget that laws and government institutions are created by the people. They are not preordained by some immutable higher power. As a society, we the people, get to say when change is required and when laws no longer serve our best interest or when they no longer reflect our ideals.
Our best interest during these times of pandemic uncertainty is to ensure this virus is contained and those who fall prey to it are afforded the care necessary in order to avoid unnecessary pain and suffering. This requires that all persons in the country, regardless of legal status, and especially those deemed essential to the food supply chain, have access to public health services. It requires that we realize our collective well-being is guaranteed only when we take care of the most vulnerable in our society. And it most definitely requires that we acknowledge the presence and real demand for the migrants who are keeping American running during these trying times.
The COVID-19 pandemic has given us a resolute and resounding answer to the age-old question dominating immigration policy debates, “whether immigrants contribute positively or deleteriously to the nation’s economy” (Ngai 5). No respectable government can simultaneously criminalize migrant workers and their families, force them to live in a legal black hole where basic human rights aren’t guaranteed due to Congress’s “plenary power,” while at the same time champion them as heroes essential to the food supply chain. Our government did not hesitate to call on these workers to sacrifice their safety amidst this dangerous and indefinite pandemic, but yet it remains steadfast and trigger-happy to scapegoat these very same workers as the root of all ills that have befallen the American people. America, much to my dismay, continues to fall short of the requisite moral integrity one would expect of a civilized and just society.
Ngai, Mae. M. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton University Press, 2004.