In cities around the country, citizens assembled to demand racial justice and an end to police brutality have been met with … border patrol agents? Why are CBP agents clubbing and gassing peaceful citizen protesters many, many miles from any border? Why are tens of thousands of completely innocent migrants, who pose no danger to anyone, imprisoned in abusive and subhuman conditions in a sprawling network of camps and detention centers? In her new book, “Illegal: How America’s Lawless Immigration Regime Threatens Us All,” political theorist Elizabeth Cohen explains how out-of-control federal immigration enforcement agencies came to not only pointlessly terrorize and persecute immigrants, but to pose a clear and urgent danger to the safety and basic liberties of American citizens. We explore the roots of restrictive American immigration policy in skull-measuring eugenic pseudoscience, whom the Northeastern WASP elite did and did not consider to be white, and how every attempt to engineer the ethnic composition of the population through immigration policy has backfired. Elizabeth tells the story of her mother and grandparent’s escape from the Nazis, their perilous statelessness, and eventual settlement in the U.S. as refugees. I talk about being a pompous descendant of old American stock who makes fun of his wife for being Irish-Italian. (I promise there’s a good point in this.) And we talk about what should be done to fix our broken and dangerous immigration system. Elizabeth F. Cohen is Professor of Political Science at Syracuse University. In addition to “Illegal,” she is author of “The Political Value of Time” and many other fine works of scholarship.

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Readings: Illegal: How America’s Lawless Immigration Regime Threatens Us All by Elizabeth Cohen


Will Wilkinson: Hi, Elizabeth, welcome to Model Citizen.

Elizabeth Cohen: Hi, Will, it’s nice to be here. Thank you.

Will Wilkinson: Thanks so much for coming on. I wanted to talk today about your most recent book, Illegal: How America’s Lawless Immigration Regime Threatens Us All. A lot of us, I guess, don’t feel threatened by our lawless immigration regime and people who are in favor of it seem to think that it is the instrument for enforcing the rule of law rather than a threat to it.

So, I think what you have to say in this book would be a surprise to a lot of people. The book is an accessible general reader history of American immigration policy that tells us how it came to pass that immigrants to the United States without papers could become illegal, how our immigration and border control apparatus, which now includes tens of thousands of armed agents, this whole network of gulags and prisons and camps, which treat immigrants who have done nothing sometimes worse than dangerous criminals.

I guess the place to start is with a little bit of historical context, like what was immigration and citizenship policy in the United States at the beginning?

Elizabeth Cohen: That’s a great question. If you look at the way we dealt with decisions about immigration into the US before the 20th century, primarily, not exclusively, but primarily, most of the actual enforcement was left up to states. So, there’s kind of like a casual statement that some people like to make that we just didn’t have immigration enforcement before the 20th century, and that’s not really true. States did a lot of it and there’s really interesting work on how movement between states became really difficult for some people in part because of enforcement having to do with slavery in the United States.

But anyway, we don’t get much federal enforcement a little bit towards the late 19th century in some important ways, but really not comprehensive enforcement efforts until after some pretty significant legislation passes in 1924. That was an attempt to bar mostly European immigrants into the US.

So, Congress kind of gets serious about its nativism in 1924. And as an afterthought, oh, we should probably enforce this too. And we’re going to need some things to do that and including some manpower. And oh, yes, we’ll probably need to keep some records and all kinds of things that hadn’t been happening very systematically before that.

So, in the five-year period between 1924 and 1929, there are a couple points at which Congress forks over really very meager resources, but also starts to put into place legal infrastructure for distinguishing between lawful and unlawful immigrants.

Will Wilkinson: Great. So, it’s more recent than people think, our immigration enforcement system. And we didn’t really have significant legislation until about 100 years ago. I mean, I guess the first thing that I think of in terms of restrictive immigration policy would be the Chinese Exclusion Act, which is in 1890 something. Is that right?

Elizabeth Cohen: Yeah. That’s the first.

Will Wilkinson: What did they do to actually exclude the Chinese? There weren’t entry and exit controls. There was no passport system, right? What you documented the book is how a system of border control and immigration enforcement depends on there’s a lot of antecedents to it. You have to have a system of papers. You have to have a system where you’re tracking people when they come in at ports and over borders. How do you know if somebody was born here or not? How do you know if somebody came with authorization or not? So, you can just say, “Chinese not welcome.” But, what does that mean?

Elizabeth Cohen: Yeah, so the Chinese Exclusion goes into effect along with essentially rules about whether people who had come before the legislation went into effect were going to be allowed to be in the US. And initially, the idea was to give them essentially permission slips if people wanted to go visit their family in China. So, paper documentation that was at first improvised essentially.

But of course, as people who study constitutional law know, ultimately, we stopped honoring that. So, people at one point left the country thinking that although they weren’t going to be allowed to be US citizens, that they were going to be allowed back in because they had entered with proper permission, even though proper permission was no longer being granted anymore, and then discovered when they came back that their permission was not being honored.

So, it is correct to say, that’s the first point at which we start thinking about that kind of documentation. As we like to do in this country, a lot of the enforcement work had been outsourced to private entities. So, even before that, ship captains had to account for who was on their ship.

And there were all kinds of poverty and health-related restrictions that in some cases, those ship captains were responsible for documenting and taking care of Chinese Exclusion is really a watershed moment, because it was directed only at people of Chinese descent coming from outside the US and then later from people within the US. I don’t look at that as really comprehensive. But it was a moment at which we started realizing we had to do some documenting if we wanted to exclude people.

Will Wilkinson: What was the beef against the Chinese?

Elizabeth Cohen: Oh, so a number of things went into that, some of which had nothing to do with. There were a couple of factors. There was a concern, first of all, that there was going to be a larger population in free states or formerly free states that didn’t have the political inclinations of former slave states were going to grow their population.

There was a lot of dispute over labor, lots and lots of tropes, really racist stereotypes about what Chinese people and Chinese workers were going to bring in terms of the way in which they did work or lived. And so, you see lots of yellow peril type of language about bad work habits and licentious behavior and things that we know.

Will Wilkinson: You’re like shiftless, inscrutable opium addicts.

Elizabeth Cohen: And also, that this was somehow transmissible, that not only were these things not true, but the idea that if somebody weren’t a good worker, you could catch it just from being around them. But underneath that was a lot of tension over labor issues, particularly in California. So, we know, there were basically pogroms in a lot of western and northwestern states that led to violent murders driving of people out of some towns and cities.

There is also this guy in California, Dennis Carney, who was an Irish American labor organizer and just thought that this was competition and he didn’t like it. And he really contributed to a lot of the facially neutral legislation and ordinances in places like San Francisco and across California that would say things, “Oh, we’re going to insist that there be 500 cubic feet of air per person in a dwelling,” and you look around, you’re like, oh, the only dwellings that don’t quite make it to 500 cubic feet of air happened to be in Chinatown. So, it’s facially neutral.

But we’re actually just telling you, you can’t live in your houses. And laundries have to be made of brick, not wood. And it turns out, the only laundries that don’t meet that are Chinese American-owned laundries.

Will Wilkinson: Well, every bit of this just feels really familiar.

Elizabeth Cohen: Yeah.

Will Wilkinson: Like, one inaccurate racist stereotypes about natives of other countries and cultures. I wasn’t actually aware of something you mentioned in passing, which is that part of the issue with Chinese immigrants was that there was a worry that they would shift the partisan balance between just slave and free states. And that’s a worry today, too, the partisan line isn’t something that’s so cleanly accords with whether states had been or slave states, but that’s a word that you hear over and over again by opponents to immigration, which is that democrats are just trying to import voters.

Elizabeth Cohen: Yeah. Well, if democrats are trying to import voters, then they’re doing a really bad job. Because if you look at place of origin, and then try and correlate it with both registration, voting, and then party ID, it’s not obviously destined to help democrats. We know that now that there’s a really longstanding that Latinx in the United States that in fact, at first blush, lots of people don’t register to vote and aren’t particularly engaged. But once there’s second generation effect goes in, not everybody’s registering democratic. So, if this is an evil genius scheme, it’s not emphasis on genius.

Will Wilkinson: Well, it would be even less clear if the Republican Party hadn’t chosen to organize itself, primarily in opposition to immigration. That can’t help you with people who identify as immigrants or part of an immigrant community. That’s obviously going to hurt you. If you’re less overtly hostile, you would do even better. So, I completely agree with you, it’s not in the cards. Yeah.

Elizabeth Cohen: I want to interject something there because that’s not necessarily always the case. One of the things we know about US history, and this probably happens in many countries of immigration, is that by second and third generation, you have people who were told they weren’t white. And this goes all the way back to 1924 when Polish and Irish and Italian people weren’t considered white, you’re told you’re not white and you’re not good enough. And we don’t want you here.

And by the second or third generation, people are looking to whiten, so to speak, and that’s just happening because lo and behold, whiteness is a really malleable and kind of made up thing. And one of the ways immigrant cohorts do that as they move along is to define yourself against newly arrived immigrants. And one of the ways to define yourself against newly arrived immigrants is to say, “Oh, you’re not us. We don’t want you.”

And you can see this in some groups of immigrants post 1965 that are part of the wave republicans oppose right now. It’s like, no, the new people coming, they’re the ones breaking the rules. I did things right or I got regularized, and we don’t want them. And so, there is actually within, say, Hispanic and Latino cohorts, some real resistance and identifying with a republican position.

Will Wilkinson: Yeah, absolutely. I don’t want to get too deep into the current politics. I want to just hit these main, the highlights of immigration policy. So, that Chinese Exclusion Act and then the first one you really mentioned is the 1924, I forget the name of the legislation. What was it called?

Elizabeth Cohen: Yeah, it’s the Nationality Act. And it’s National Origins Act. It is a comprehensive attempt to keep almost all Europeans out of the US. And it was rooted in a real passion for sociobiology at the time for some really misguided beliefs that people as well-known as Woodrow Wilson subscribed to, which was that you could do things craniometry and measure people’s heads and stuff like that and determine whether they were going to be good citizens and kind of how intelligent they were.

And there was this sense that almost all European ethnicities were not white, first of all, very clearly not white. It’s hard for my students to believe this when I tell them, your grandparents weren’t white. If you were Polish, even German, I found it so remarkable to listen to Trump talking about Scandinavians as ideal citizens, I think presuming Scandinavians had always been white.

But in fact, if you go back and look, there was deep disagreement about whether Scandinavian, Norwegians and Swedish people were actually white enough to be good US citizens. So, in 1924, we slapped some quotas on that basically halt immigration to the United States because nobody who actually wanted to come to the US was allowed to come anymore and immigration plummets over the next 10 years. And then we realized, we’re going to have to enforce this.

One of the things that happens is there’s deep disagreement during the discussions over that bill about whether it should include immigration from the Americas. Because some people did not think that that was particularly important or consequential. And there were a variety of constituencies that were pushing back against that.

Will Wilkinson: It’s really just one of the great oversights in-

Elizabeth Cohen: In the United States.

Will Wilkinson: Yeah, I mean, they’re literally trying to socially engineer the genetic composition of the population. But they’re just like, let’s not worry about the very large contiguous country. But there’s reasons for that because that actually is an indicator of just how integrated Mexican and American labor markets already were. And that you’d be stepping on some rich Americans’ toes if you cut off their source of cheap labor.

Elizabeth Cohen: Yeah. And I don’t think that the people doing a lot of this work in Washington really cared that much about that. There was pushback to the bill overall by people who wanted cheap labor. Lots of industrialists were like, “What are we going to do if we don’t have Italian stone workers anymore.” And when I was in grad school, the buildings on the Yale campus, particularly law school, were cut by those very stone workers, it was that era. And you can see that they are really angry about what’s going on. Because if you look at the carvings in the front of the building, it’s they’re really subversive. They’re students falling asleep and professors droning on and on, which we never do.

And anyway, so there was pushback all across the board. But the nativism in the US, it’s weird, has a long tradition of being elite driven. And this was driven by a lot of Washington elites, people who’d gone to places Harvard and Yale, and had these beliefs and were not particularly interested in what a Texas rancher or somebody growing produce down closer to the border needed.

And if anything, they were kind of hostile to those places. So, they were like we’re going to go in there and show you, first of all, how to run things, but in particular, we kind of want to be a vice squad because we think you’re breaking the rules about prohibition and all these other things. And so, this is a good excuse to send some of our guys down there to set you straight on how to live and as you can imagine, things like that go over great in Texas.

Will Wilkinson: Yeah, I would imagine that the skull and bones caliper school measures don’t identify very much with ranchers in Arizona, elites in the northeast, who were super into the 1920s version of the bell curve, probably just weren’t identifying with the economic interests of people who dealt in cows.

Elizabeth Cohen: Yeah. And the idea that people were living … I mean, the border meant nothing. Border kind of goes through regions where people, there was tourism, there was commerce, people’s businesses depended on people being able to cross the border pretty freely on a daily or weekly basis.

And I don’t think somebody from Cambridge, Massachusetts is really prepared to understand what it means to just stop that or create a massive queue or line or something because it’s not important to their life. What was important to them was we think there’s prostitution and alcohol consumption and we don’t like that. We don’t want you to be able to do that.

Will Wilkinson: So, the first kind of Border Patrol agents are really, as you say, kind of vise squads, they’re there to crack up gin joints and gambling and stuff like that, which because the problem with the border isn’t that people are coming over and working and living in the US without authorization. The problem is more that Americans are going to Mexico and go into a brothel.

Elizabeth Cohen: Yeah, there was that. I mean, yeah, Americans were going to brothels in the US, too.

Will Wilkinson: Yeah.

Elizabeth Cohen: I mean, like-

Will Wilkinson: You don’t have to go to Mexico.

Elizabeth Cohen: [Inaudible 20:40] in Texas, at that time. Yeah, there’s this general kind of sense that bad things are happening or things we don’t want, the northeasterners did not want to allow westerners to do and it was a way to gain some control over a pretty wild area. And I think the problem of course, the Washington folks trying to do this encounter is the only people willing to actually get on a horse or into a Chevy and go down and do this work, are people who are more likely to engage in those practices, drinking on the job, and breaking the law.

Will Wilkinson: Yeah. The people who are going to sign up are not the most upstanding citizens.

Elizabeth Cohen: No, they had to drop passing the basic civil service exam requirement for Border Patrol because they could not find people who could pass it, who were willing to do that job. And one of the things I try to get across to folks in Illegal is this kind of institutional culture of impunity and law breaking, which is very present now in the news, it goes all the way back to the beginning. It was always rough work that you could get only so many decent people to do.

And before there was Border Patrol, there had been a number of incidents with Texas Rangers who were also notoriously kind of wild, just basically lynching Mexican people and Mexican American people, driving people out of the country en mass in really violent ways, and in some cases, killing them. So, some of those people get funneled directly into Border Patrol jobs, and of course, act the way they had been behaving before that.

Will Wilkinson: That was something that was new to me, how deep seeded the culture of corruption in border enforcement there is. That is something people might be aware of just how scandal ridden CPB is. They’re constantly getting charged with sexual assault, just beating the crap out of people for no reason. They were employing a serial killer for a while. But their internal oversight is nil. They’re incredibly opaque. They cover everything up. They release no information to the public, so that oversight is basically impossible.

So, they really are, as you say, sort of lawless. Nobody’s governing these people and it’s a self-selected group of just total shit stains who select into this agency. I mean, maybe you wouldn’t put it that way in particular.

Elizabeth Cohen: There is a real culture of impunity that goes all the way back. If you look at law enforcement … CBP, first of all, is the largest federal law enforcement agency and not by a little. It dwarfs the other.

Will Wilkinson: The initials are familiar to us but-

Elizabeth Cohen: Sorry, Customs and Border Protection, which is the relatively newly formed agency under which Border Patrol now falls and they’re huge. And if you just go and are looking at, all right, where do we have law enforcement agents getting arrested a lot? It’s CBP. There’s a really clear pattern of employing people who get arrested, in addition to people doing things that they definitely shouldn’t be doing on the job, including sometimes killing people.

Will Wilkinson: This is a slight tangent, but there’s something I wanted to ask you and this is a good place. How surprised were you to see CPB agents enlisted to police protests in Portland and DC? That’s not their job.

Elizabeth Cohen: Yeah.

Will Wilkinson: So, were you like, “Oh, I’m very surprised to see them there.”

Elizabeth Cohen: I never want to project this cool kind of, oh, nothing’s shocking to me anymore because I read about this all the time. It is shocking even to people who understand that this is both possible and precedented. It’s not unprecedented. So, I thought the scenes of what was happening in Portland and some of the reports from other cities were genuinely shocking because that should shock us.

But it is the case that Customs and Border Protection, CBP, does overstep their legal authority, which is already quite broad regularly. And it’s also the case that Homeland Security, which is the department under which they fall along with ICE, has not made a practice of bringing them back into line.

So, does it surprise me that Homeland Security is looking to nose around in what US citizens are doing even when they’re not evidently breaking the law? No, that’s not surprising. We know that that’s part of the problem with the agency from the outset. And does it surprise me that they didn’t rein CBP back in when CBP was making them look pretty bad? Not at all, that’s the way that that agency is set up.

Will Wilkinson: Something that I found really striking is if you put it all together, I mean, part of your title, America’s lawless immigration regime, and it seems like that might be rhetorical or hyperbolic, or something like that. But if you just list all of the things that CPB and ICE, all of the regulations that they’re not bound by that all other law enforcement agencies are bound by, it’s shocking.

They basically exempt from Fourth Amendment restrictions on search and seizure. They can just do whatever they like within their special zone. So, most people, but not everybody, know that their jurisdiction extends to 100 miles from any point on the border. And then what is it? Is it 25 miles?

Elizabeth Cohen: Yeah, there’s a 25-mile zone in which they really don’t … A lot of Fourth Amendment constraints on searches and seizures that US citizens, particularly the ones that I think of as really being pro-enforcement that they also tend to embrace. You don’t want people on your property without permission. And you don’t want people stopping and searching and questioning you without having to jump through some hoops. And in that 25-mile zone, in particular, Customs and Border Protection has carved out some exemptions from the Fourth Amendment. So, they really can act in ways that no other law enforcement agents can.

Will Wilkinson: They can set up a checkpoint and just stop you.

Elizabeth Cohen: Yeah, but they can also go on your property.

Will Wilkinson: You mentioned a story of somebody who’s immigration agents just came onto the property, put up cameras on their property. I guess they suspected that people were crossing that property to get into the … So, they’re putting cameras up on this person’s private property. The person took down the cameras and then got in trouble. And they’re like, “Give us our cameras back.” And they’re like, “You just walked into my property.” That is not America’s get off my land people. You’d think they’d be upset about that. They’d be upset about that as well as the huge amount of eminent domain that has to get done to do things build a border wall.

So, there’s the systematic set of violations of fundamental rights to property, to privacy, to the security of your person and papers from the prying eyes of law enforcement. They’ve got carte blanche on a bunch of stuff. But the point that you make that wasn’t as clear to me before, is that despite all that, they always push the envelope.

Elizabeth Cohen: Yeah.

Will Wilkinson: So, by our jurisdiction is 100 miles from the border, but then they’ll go 110 miles from the border and still do it anyway and just try to stop us or they’ll stop people in a completely egregious way. And rather than get reined in, they’ll just argue that we ought to change the law to make whatever illegal thing that they’re doing legal.

Elizabeth Cohen: Yeah, that’s the thing that kind of makes you want to laugh and cry at the same time. And this goes back decades. Congress will be like, “Ah, you seem to be not obeying the rules.” And what was Border Patrol at the time comes back and is, “Oh, could you just make that legal for us, please?” And it happens. It’s crazy.

Will Wilkinson: Yeah.

Elizabeth Cohen: And people, I think there’s this sense that if you’re following the rules, this won’t matter to you. But Homeland Security was set up to be watching what we’re doing. And these are agencies that are allowed to gather that information in ways that we think they can’t, but they actually can. So, it does affect everyone, not just some image in people’s head about who is an unlawful presence in the country.

Will Wilkinson: ICE will surveil and investigate journalists and lawyers who are opposed to what they’re doing and then they’ll even harass and intimidate them. It’s very out of line, but nobody does anything about it. Ever. And then when you take all of that and you combine it with stuff that gets embodied in our immigration law, which we’ll get to, then it becomes really, really troubling. It’s the complete absence of substantive due process protections for people suspected of being here illegally, that could be a citizen.

Elizabeth Cohen: Yeah.

Will Wilkinson: And so, you put all of it together, it could be the case that you’re in your house, a bunch of Border Patrol or ICE just come onto your property because you’re within how many ever miles of the border. You come out of your house. You’re like, “What are you doing?” And they’re like, “Get on the ground.” And you’re like, “What?” And they just grab you because they can’t go in your house. But if you’re out of your house, you’re fair game. And you’re like, “I’m a citizen, I’m a citizen.” And they’re like, “You look Mexican to me.”

And then they take you in. They put you in detention. You’re like, “I’m a citizen.” And they’re like, “Prove it. Have somebody bring in your birth certificate.” And they just put it in a shredder. They’re just like, “Try again.” And then you could get deported. There’s nothing that stops that from happening. Because as long as they think that you are not a citizen who’s there illegally, you have no real recourse. You don’t have any right to legal counsel. If you are a citizen, you do have that right. But nobody’s going to come check to make sure that you’re not in the system in a way that you shouldn’t be.

Elizabeth Cohen: Yeah, one of the, I guess, ironies of the way that this process works, so, I cite in the book this Cato study, that kind of extrapolates from data that they have in Texas, showing that I think it’s in an eight-year period, thousands, I think 7000 US citizens were targeted for potential deportation. And I think there is a sense among people who have vague impression that it’s a good thing to have really strict border enforcement and to empower these folks, is most people in the US, particularly anybody who’s not a liberal cosmopolitan elite, all these stereotypes, they don’t have a lot of documentation, and it’s not easy for them to get.

They don’t have their passport. Vast proportion of the US population doesn’t have their passport, may not be able to access their birth certificate. So, how protected do you think you are? And in particular, the demographics that support really, really strict border enforcement, that’s who’s vulnerable to being picked up and told, “You can’t really prove you’re a US citizen. And we’re tossing you out.”

Will Wilkinson: Yeah, that is super chilling. Let’s circle back to how horrible that is. But let’s get back to our timeline a little bit of the lowlights in American immigration policy. So, we get the 1924 legislation, that’s the most restrictive that we’ve ever made our immigration laws.

Elizabeth Cohen: Federal.

Will Wilkinson: Yeah, federally. It sets up these really strict quotas that limit the immigrants coming from any particular country to the percentage that was coming in from that country in, what was it 1890 or something?

Elizabeth Cohen: Yeah. Most of the numbers were based on the 1890 census.

Will Wilkinson: Yeah, because they’re hoping to keep the ethnic composition of the national population as close as possible to the founding generation, to the settler ethnicities, so mostly English. And that really does exclude just about everybody, right?

Elizabeth Cohen: Yeah.

Will Wilkinson: So, right before that time, people think of the big Ellis Island period. You get these huge numbers of Italians, Irish, lots of other Southern Europeans, Eastern Europeans coming into the country. And it just cuts almost all of that off, right?

Elizabeth Cohen: Yeah, it was white nationalists trying to engineer the population. They wanted to get back to at least before the really big wave, they thought, before the really big wave of Central, Eastern Europeans. And they didn’t quite make it to cut out Irish, but they did essentially stop Irish immigration as well. And yeah, to get back to an originalist version of demographics of the US, if such a thing can be-

Will Wilkinson: Demographic originalism. Yeah.

Elizabeth Cohen: Yeah. Never mind that it wasn’t real originalism because of course real originalism would have encouraged all the Europeans to leave, but well, just take note of that.

Will Wilkinson: The clock starts with the mayflower. No, but nobody here before that matters. But then they had the same kind of problem. It’s incredibly restrictive, but still they haven’t implemented all of the basically bureaucratic mechanisms that you need to enforce this. So, there’s this big mandate for controlling who from where gets in. But the legislation really doesn’t put the mechanisms in place. That’s something they have to kind of scramble to do later. Right?

Elizabeth Cohen: Yeah. There is Congress and what they wanted to do. And then there’s what’s happening, which is there’s Ellis Island and other places where people were arriving and the inspectors have a pretty inconsistent way of keeping records. And the push for recordkeeping actually does predate this a little bit, goes back into the teens. But it just wasn’t consistently … A lot of things weren’t consistently recorded.

So, even through the 1920s, there are all these people arriving whose proper paperwork is never put into place. And then there are people who arrived before the legislation went into effect, but also didn’t have their authorization paper. So, there’s a cohort of people in the ’20s that just kind of fall between the cracks because there wasn’t a good recordkeeping system. Or they hadn’t been told what they needed to do to make sure their paperwork is in order.

And they start writing to their congressmen. I had a wonderful research assistant who helped me find some of this stuff. They start writing to their congressmen. They’re like, “I don’t know what to do. I feel I might be deported because somebody didn’t get this stuff in order.” And also, there’s this concern, at the same time that we actually have to put some penalties into place because it’s one thing to say don’t do this. But then it’s another thing to know how to react when somebody actually does do this.

So, 1929 Congress takes that on. They put some penalties into place. So, that’s the first moment at which you can actually be punished for not having your paperwork in order for being unauthorized or at least looking unauthorized. But at the same time, because there were all these people who’d been there for a decade in some cases, or even longer who are writing to their Congressman asking, “What do I do?”

Congress also in the same gesture passes something called Registry, which is if you have been in this country since, and the first day it was 1921, and you’re basically acting like a citizen, you have a job, you have a family, all the things that those congressmen would have thought are citizenly, we’re going to get you right and put you on the path to becoming a citizen. That’s called the Registry Act.

And it’s really amazing because it’s incredibly racist Congress, the thing, it’s like it would peel the paint off your car to read some of the things they were saying about what are now considered to be upstanding white Americans who did it the right way. But they’re also like, oh, but it’s just wrong to deport somebody who’s been in the country for that long. These are obviously people who have become American. There was no disconnect for them that they would also regularize people who were unauthorized to use the pejorative “illegal immigrants.”

Will Wilkinson: That was something that was news to me reading your book. I only hazily was aware of the Registry Act.

Elizabeth Cohen: As do most people.

Will Wilkinson: Yeah, I’ve read about it, because for a long time … So, I read up about it, but it never figured centrally in anything that I’d read because it’s become vestigial and unused, we can get back to that, when we talk about what we could do to make the system better. But the idea that these completely overtly racist legislators who are … Because now, anti-immigration politicians speak in code. They don’t just come straight up and say, “The inferior races-“

Elizabeth Cohen: Well, [crosstalk 00:38:59] does.

Will Wilkinson: We’ll never be able to mix with the Englishmen or whatever. They would just say that stuff straight up. That’s the reason we’re keeping them out is because they’re substandard stock and they’ll pervert our culture and morals and blah, blah.

So, they say all of that just completely scurrilous stuff. But then, this was totally news to me that everybody’s like, “Yeah, but a bunch of these people have been here forever. And they’re completely knit into the fabric of our communities and societies. And it’s just cruel and weird to not allow them to have the rights of an American because they’re de facto American.” So, here, if you came here before the state, you can become a citizen.

Elizabeth Cohen: Yeah.

Will Wilkinson: And that that was just the standard view of those overtly racist immigration restrictionists and continued to be until the ’70s or so, was something that I didn’t know about and I think is really interesting because it doesn’t just suggest that history repeats itself, but in some ways attitudes are worse now. There is not that much generosity about people who have completely integrated and intertwined their fortunes with citizens and communities. There’s this one act of original sin. You cross the border without authorization. It taints everything. You are effectively a criminal.

Elizabeth Cohen: Yeah.

Will Wilkinson: And that can never be washed out. So, it doesn’t matter if you’re the beloved music teacher of the high school to whom three generations owe their state championship band awards, whatever it is, you could be just the pillar of the community, it doesn’t matter in the current account, which is just that there’s no coming back from this original act of malfeasance, which is, in fact, a completely trivial misdemeanor.

Elizabeth Cohen: Yes, usually noncriminal. I’m always trying to come up with analogies for my students. And I often will say, this is as if you once had a DUI, you got to a place and you had been intoxicated on the way. And so, you’d broken a law. And then you can never be anywhere again because you got to the place from which you’ll go all those other places in a way that wasn’t okay. It’s as if that were to cast some kind of pall over every single other move you made for the rest of your life. And yeah, for most of US history-

Will Wilkinson: Good analogy, because literally, driving drunk is far more dangerous.

Elizabeth Cohen: Yeah.

Will Wilkinson: To other people, [crosstalk 00:41:46] they’re strolling across the border and becoming a nurse.

Elizabeth Cohen: Yeah, but also, a really large proportion of the people who are in this category strolled across the border with proper papers and then either unaware or in some cases aware, their visa expired, too. So, there’s I think a much-

Will Wilkinson: A lot of visa overstays.

Elizabeth Cohen: Yeah, greater sense of intentional lawbreaking if your image in your head is somebody’s sneaking around a guarded crossing, but that’s in most cases not what’s happening, or in a large proportion of cases, not what’s happening. It’s somebody who’s got a job or is doing something. And tick tock, oh, your visa is about to expire. I can’t leave right now. My kid is about to finish second grade or I am doing a job and I can’t leave the job because they need me to do this job. Lots and lots, but the clock strikes midnight and the visas now basically saying that you’re unauthorized.

Will Wilkinson: Yeah. So, Registry, you characterize like a statute of limitations on …

Elizabeth Cohen: Yeah, on what isn’t even a criminal act. But yes, it’s a statute of limitations.

Will Wilkinson: Yeah. And right now, we have no statute of limitations. We do for basically everything except the most heinous crimes. But this thing that’s not really even a crime, you can pay for it. You could be 95 years old and you came when you were two, and you could still get deported.

Elizabeth Cohen: Yeah. And once you’re deported-

Will Wilkinson: I guess, if you’re not 95, you would actually qualify from the last time they updated.

Elizabeth Cohen: That one person probably is eligible for registry still, whether they know it is another matter and whether they can afford to jump through the hoops, which seem to get higher and smaller every passing week right now. But yeah, there’s no-

Will Wilkinson: The Registry is still on the books.

Elizabeth Cohen: Registry is on the books. So, the last time we updated, it was 1986, when we passed Immigration Reform and Control Act, and the date was set to, I think, December 1972. So, that person who would be older than me, they would have been in this country longer than I’ve been alive. But yeah, that person would be eligible to be regularized, but it almost never happens now.

Will Wilkinson: So, let’s jump ahead to the next big thing, which is the 1965 Immigration Reform. So, that basically delivers the general immigration system that we have now. Tell me how it changed, what was in place before and why they wanted to do it.

Elizabeth Cohen: Right. So, in 1965, we get rid of the quotas and start to open up immigration. So, not only do we stop looking country by country at what your cranial size is, but we also start to let more people into the country. And so, the system that comes into place eventually and it gets kind of edited involves, first of all, some priorities, like having family in the country. So, family reunification gets encoded.

And we were starting to move to a real system of refuge although we don’t get the Refugee Act until 1980. Then we also encode some work priorities into the law. And it really creates the avenue through which a lot of people’s now parents, if they’re second generation parents came to the US. It’s interesting because it’s considered this big liberalization. And it was in the sense that now immigrants could enter, lawfully enter the US. But family reunification is this kind of controversial part of it.

And so, family reunification is one way of saying what a lot of people on the right now call chain migration and they absolutely loathe it. It’s like, this is how people are grabbing hold of each other and coming into this country and we’re getting too many people from countries that we don’t think are places where good people come from, et cetera, et cetera.

But at the time, and again, the language would kind of maybe not peel the paint off your car, but it was pretty strong, there was a-

Will Wilkinson: It would bubble it.

Elizabeth Cohen: They would definitely pucker the paint on your car. There was all this concern about who was going to come into the country because lo and behold, white nationalism racism, nativism was not gone. And yeah, amazingly, we are still the same people we’ve always been. And so, congressmen are discussing what are we going to do to make sure that we maintain the ethnic balance of the country because we have now decided that Germans and Irish people are okay, but we are not okay with some of those other parts of the world yet. Do not talk to us about large numbers of immigrants coming from any African country, for example.

And they settle on family reunification because they’re like, “Well, all the German and Irish people will sponsor their family members and we will end up with a very stable ethnic balance in the United States.” But as is often the case in Congress, they’re wildly behind the times. They have not figured out that German people do not at this point need or want to leave Germany, and nobody’s coming and who’s coming, it’s people from-

Will Wilkinson: They’re no longer having a potato famine-

Elizabeth Cohen: I guess.

Will Wilkinson: … in Ireland.

Elizabeth Cohen: There actually is that’s one of the kind of weird quirks in the United States is there is a sizable undocumented Irish population, but not because there’s a potato famine. And so, it’s not European immigrants who are coming and sponsoring their family members. There are people coming, people that we had played a role in displacing in Vietnam, for example. We’re getting East and South Asian immigration and immigration from African countries and immigration from Latin America. So, it just does not go the way the people who wanted a stable European origin population had planned it.

Will Wilkinson: Yeah, there’s, again, unintended consequences, just bites them in the ass really hard because the big oversight of the ‘24 super restrictionist bill is anybody from the Western Hemisphere can come on in so that basically the Mexican population just grows and grows and grows. And because they’ve come basically completely restricted European immigration, the country becomes less white. Right?

Elizabeth Cohen: Yeah.

Will Wilkinson: That you don’t have any new white immigrants really, but there’s a lot of Mexicans who are coming. So, it actually gets less white. But they come. They’ve naturalized. So, you got the chain migration now. Now, they can all sponsor their families. And then we get these knock on effects from our colonialist and imperialist adventures, we have a bunch of Filipino migrants that are say, the effect of having decided that we own the Philippines for a little while.

Elizabeth Cohen: And thank God because that is where a large proportion of nurses in the US came for a long time because we had a specific program to train nurses because we did not have enough nurses in the US, oh yeah.

Will Wilkinson: There are small numbers of East and South Asian citizens. Everybody knows about the Japanese internment during World War II. But those are these small populations of citizens from various countries. And this really opens it up for them to start sponsoring family members. And then that starts to have a kind of cumulative amplifying effect over time.

Elizabeth Cohen: Yeah. One of the lessons I think of the book is if you really are skeptical about the makeup, whatever traits you are skeptical about of an immigrant population, the one thing you don’t want to do is try and legislate to prevent them from coming because it’s pretty much history tells us guaranteed that the method you use to try and prevent people from coming to the country will ultimately, even if not immediately, backfire and get you the exact opposite result that you’re going for. And I think of that often as I’m watching what’s happening now. I’m like, “This is not going to end well for the people who think it’s going well now.”

Will Wilkinson: Well, I think the most recent example of that and just a second we’ll get to how it is, why it is we militarized the border and really try to harden it, but that has had unintended consequences as well. For, I don’t know, centuries maybe basically circular migration between … A big chunk of the American Southwest just was Spanish colonial Mexico and then just Mexico, Mexico after independence, and then we ended up taking it.

And so, a big chunk of the US was Mexico. So, those populations of the Spanish colonial stock, the indigenous stock, the mix of those, the mestizo, those are all basic American ethnicities because they always been here from the second we were a country. I hate the way American history is told from east to west, with the frontier, because it’s just fundamentally misleading. It should just be chronological.

Elizabeth Cohen: Yeah.

Will Wilkinson: Right. It’s like what was happening in our territory at these points in time, the first thing that happens in terms of European presence is Spanish come and explore. They have these setup settlements in 1490s or something like that in New Mexico and Florida and California, stuff like that. Coronado gets up to basically Kansas City in 1540 something or something like that. That’s the history. And so, all of those people are already here when Pennsylvania becomes a state.

Elizabeth Cohen: Yeah.

Will Wilkinson: And that is already a culture that has its own trade routes, its own economy, and putting the line across it at a certain point in 1848, I forget what year it is, doesn’t change anything about the economic geography of the region. The labor flows, the trade flows, none of that’s going to change. And so, you just get these flows of people no matter what.

So, it’s always happening. There’s always been seasonal agricultural workers, as long as there’s been agriculture in the southwest. They’ll come. They’ll work for the season. They go back home. And then we militarize the border and made it too risky for people to go back home. So, we just locked a bunch of undocumented immigrants in the country, rather than keeping a bunch out.

And we would have fewer if we hadn’t done it because a lot of people still don’t understand that unauthorized entries have just plummeted and we’re getting net negative migration from Mexico, and a lot of our undocumented population are people who would have gone back to Mexico.

But really, it was like, if I try to go back, I might not be able to get back for next season, so I’ll just stay here. But then when they stay there, you become more integrated in the community. You might meet somebody and marry them. You’ve got children. Now, you certainly aren’t leaving. And so, again, we get these unintended consequences where our undocumented population got larger because we tried to-

Elizabeth Cohen: Yeah. The unauthorized population is held in place by the documentation regime. So, it’s unimaginable for somebody who simply wants to have a family in a town and have those people never leave the state or whatever, people who live very rooted lives, that not everybody leads a rooted life. But in fact, people don’t. And once we start documenting and using visas and things like that, it’s much harder for people to move around.

And there’s some good sociology on essentially enclaving where we lock people in the country in the process of trying to keep them out of the country, we lock them in. But then also, we’ve locked ourselves in the country. And this is something that we’ve become acutely aware of this during the pandemic, that once you have that regime really well entrenched, it also means that we can’t go places.

And again, there may be a large contingent of right leaning voters who are, well, who wants to leave the greatest country on the face of the planet. But in fact, many of those people depend on somebody else leaving the country on a regular basis to ensure that they can do their jobs. Lots of movement needs to happen in our economy.

Will Wilkinson: Yeah, yeah. I mean, my hometown, I think I mentioned this in my … I talked to Matt Yglesias last week and I think I mentioned it then, my hometown, Marshalltown, Iowa, has become 25, 30% Mexican. And I think it is largely a function of our immigration policy. They’re all from the same town. It is chain migration. They’re all from the same town in Northwest Mexico. All the cars there have Marshall County, Iowa license plates because your cousin goes to work at the meatpacking plant in Marshalltown and they buy a car and drive it back to Northwest Mexico.

Mexican workers have been coming for a long time, but they were seasonal and they stopped being seasonal. They became permanent. And that really changed the complexion of my town, which was incredibly white when I was growing up there.

But as I mentioned to Matt last week, it also saved my small town from a depopulation death spiral. There’s some tradeoffs there. It’s not as rich as it used to be. The level of education is on average lower property crime has gone up a little bit. But it exists. It hasn’t just become a bombed out husk of people in mobility assistance chairs doing oxy while they cash their Social Security Disability check.

Elizabeth Cohen: Well, and those are for generation effects. In terms of education and income, that won’t be stable. Those will rise again. We know that.

Will Wilkinson: I wanted to back up a second. And so, we’re at 1965, I want to just take a step back. I understand that your mother is an immigrant.

Elizabeth Cohen: Yes.

Will Wilkinson: What was the occasion of her arrival?

Elizabeth Cohen: So, my mother and her parents and her sister and brother arrived in the US 1950. They had been in a displaced persons camp outside of Vienna. They’d actually been in several. It turns out they had been displaced by World War II by the Holocaust that my grandfather and grandmother had fled east into Russia, had been put into a Stalinist work camp and had escaped with their lives and they’d had children along the way. And then when the war ended, they did not have Polish citizenship anymore. They come from a country that no longer recognized them and was not safe. And they spent we think about five years.

Will Wilkinson: So, they were stateless?

Elizabeth Cohen: They were stateless. Yeah. And we just went through the papers. And I was surprised at how emotional the experience was to see staatenlos on the papers.

Will Wilkinson: It just says, what that means …

Elizabeth Cohen: Staatenlos, stateless, staatenlos.

Will Wilkinson: Stateless, staatenlos.

Elizabeth Cohen: And then you see, they’re getting shuffled from refugee camp to refugee camp in Austria because, of course, nobody wanted them. I mean, I think it’s very hard for a lot of US born folks to even wrap their heads around the idea that there are large numbers of people who have no right to exist anywhere. There is literally no place for them to have a life. It’s a privilege that we enjoy.

And so, at a certain point, the US, it’s 1950, so, we’ve already established in this conversation like Polish people or anybody from Europe, they were not welcome. We did not have very good provisions for refugees during or after World War II. People, I think, know that we rejected most people who wanted to come and those people mostly died.

But just this one camp that they were in at one point got lucky. We think that maybe the US wanted to establish a military presence, maybe something to do with Berlin Blockade or something. We really don’t know. And my grandfather had been holding out. He did not want to go to Israel or Argentina, where there was family. He had concerns about those places. And they just got lucky and got visas, and took a boat and came to the US. And they were sponsored by HIAS, the Hebrew Immigrant Aid Society, who helps lots of refugees, not Jewish refugees now.

Will Wilkinson: Yeah, we’ve worked with them.

Elizabeth Cohen: Yeah.

Will Wilkinson: Niskanen, and we do a lot of work on refugees. And they’re just a terrific organization. I give money to them.

Elizabeth Cohen: They get a donation from me. I’m on a monthly with them. So, I owe them. And yeah, they were sponsored by a family in Upstate New York. And so, off to Albany, New York, they went and that’s where they settled.

Will Wilkinson: And look at you now, just-

Elizabeth Cohen: So American.

Will Wilkinson: American students with your-

Elizabeth Cohen: Yeah, they never tire of telling me how American I am because I like things like ketchup. And in an immigrant family, it’s the biggest point down when your family is, “Oh, you’re so American.”

Will Wilkinson: So, do you have a consciousness or an identity as being from an immigrant family that’s part of your identity?

Elizabeth Cohen: I mean, English was not the only language spoken in the household when I was young. My mother’s first language is Yiddish. And my grandfather spoke five languages, spoke and read five languages because that’s how you survive a Holocaust.

Will Wilkinson: God.

Elizabeth Cohen: Yes, and I do still hold that with me even though I’m obviously also American.

Will Wilkinson: Yeah, yeah. One of the reasons I bring it up is my father is also an immigrant, but I have zero consciousness. I don’t think of myself as a second generation immigrant or something, because he’s a white guy named James Wilkinson from Saskatchewan. And I think that really does speak to the extent to which our immigration policy is laden with all these racists, not just white supremacists, but even Anglo-supremacist assumptions because I’ve never once … I’m half-Canadian. And I’ve never once had this feeling that somehow I was not fully American because I’m exactly the person that still gets through in the 1924 bill. And I think that persists in our culture.

My wife is half-Irish, half-Italian, kind of classic New York City area combination. And I’ll, sometimes just lightheartedly, give her a little business for coming from the swarthy stock or these drunk Irish. And it really is a certain kind of Anglo-ethnocentrism that somehow I’ve inherited. I don’t like it. I’m not proud of it. But I noticed it in myself, where I’m like, whatever kernel of Irish and Italians are, really white? That hasn’t completely wiped out because nothing really goes away forever.

It’s not like I go around thinking that Irish people aren’t white, but whatever my English roots are. And on my mother’s side, it goes back to the second colonial governor of Rhode Island. So, there’s some old Americans.

Elizabeth Cohen: Wow, good for you.

Will Wilkinson: No, no, it doesn’t matter. It’s stupid. My mother really, really wanted to get into the Daughters of the American Revolution. She was like a Phyllis Schlafly Eagle Forum newsletter subscriber. She really wanted to get into DAR and the only person she could find … We just didn’t have any ancestors that fought in the Revolutionary War. All she found was a relationship to Benedict Arnold, but not the Benedict Arnold, it was like his grandfather. So, that side of the family. I find it exasperating that somebody would just take a lot of pride in that.

Elizabeth Cohen: It matters to people in circumstances in which that is what they’re told they should grasp for pride in. But it’s kind of funny to hear you, I mean, describe Iowa as it’s not as white as it used to be. And it’s all these immigrants who came to do this work. And my dad is native from Upstate New York, from Schenectady. And I went to Schenectady recently just to kind of poke around. And I cleaned off my grandpa’s grave, stuff like that.

And that was a town that he describes as having been just the Iowa you’re depicting in which there were a ton of Italian immigrants who all had basically the same last name because they came from the same town and you were like [Dinopoli 01:02:38]. And at a time when I know that they weren’t considered white because there were people getting sent to the back of the bus because they looked swarthy enough that they were being treated as if they were black. And those were the laws. And you go now, and Upstate New York to 2020 is so white, so incredibly white. And it’s like, yeah, that’s going to be Iowa in a couple generations.

Will Wilkinson: Yeah.

Elizabeth Cohen: And there’ll be residual stuff and somebody will be teasing somebody’s spouse about being swarthy and kind of New Yorky.

Will Wilkinson: Yeah. Well, the reason I brought that up because I think it sounds weird to be like making fun of my wife for being Italian. I do think that our memory, our explicit memory of these things is really short. As you’re saying, your students can’t believe that somebody from Ireland might not count as white. But these taxonomies and systems of hierarchy, they don’t just rinse out of the culture completely. They persist.

Elizabeth Cohen: It changed, but they don’t know why.

Will Wilkinson: They morph and they change. And so, I think, if I have some idea that somehow just in virtue of being named William James Kenneth Wilkinson, that I can even in a jocular way, sneer at my wife’s Irish Italian heritage, and I’m off the scale on openness to experience in low ethnocentrism, I’m as far as you’d get on just not having an impulse to identify with my ethnic group. Still, I have some consciousness of that.

So, if I’m thinking about, “Oh, I’m better than an Irishman because I’m a proper Englishman.” The idea that black white American racism could somehow have rinsed out of our culture just seems preposterous. Because the depth of that is so many orders of magnitude greater than whatever the hierarchical relationship between the Irish and the English or the English and the Italians were.

And so, there’s a naivete to think that these things just go away, even though these categories and taxonomies do change. But that’s a bit of a tangent. Got a little bit of time left, I want to get back to the main story. So, we have the 1965 bill. It creates this large immigrant population of the United States that wasn’t anticipated. The next big move is the ’86 bill, which is famous to most people for being when we got this big amnesty, but that wasn’t really the central intention of the legislation.

Elizabeth Cohen: So, first of all, it’s amazing to think back to a time when you had republicans, including Reagan, who were like, “We have people living in this country for a long period of time and no way to get citizenship. That’s a problem.” That last part, because I can’t imagine a Republican Party of 2020 doing that. I can’t even imagine democrats in the ’90s doing that.

So, there’s a provision for legal seasonal workers, who had been in the country for four years, certain portion of the year for four years, for them to gain citizenship based on the fact that they’d been doing work in the United States. And that was something that was treated as qualification for becoming regularized. And then also undocumented workers who could prove that they’d been living in the country for four years.

And so, we regularize ultimately about three million people. And a lot of people like to say there’s a backlash, and there is a backlash. There are people who just do not like that this happened. They didn’t it when it was happening. There had also been a steady kind of presence, as you just illustrated in our kind of tangent of white nationalism that had not gone away, primarily elite driven in the kind of organizational form that had been resisting the presence of immigrants all along.

And it’s interesting to see who they ally with because groups that we think of as good guys like Sierra Club, there was this whole kind of, oh, population explosion fear. So, there’d been this resistance and after-

Will Wilkinson: Tell us a little about John Tanton.

Elizabeth Cohen: John Tanton. John Tanton is like the ’70s through ’90s, he just died, I think, a year and a half ago, is it now, maybe a year ago. He’s an ophthalmologist, so highly educated person who considered himself to be white. And he falls in with this kind of group of people who are ostensibly concerned about population control. But what John Tanton really is concerned with is non-white immigrants coming to the United States.

And he manages to court some donors, including a really affluent member of the Mellon family, to give money to found three organizations whose purpose is basically to put a kind of sciencey face on information that’s not very good data about immigration, just designed to scare people and give fodder for model legislation, things like that. So, it’s Center for Immigration Studies, FAIR, Americans for Immigration Reform, and then NumbersUSA are his three organizations. And they just pump out reports and data, whose only purpose is to try and skew people’s picture of what immigrants do in the United States.

Will Wilkinson: My colleague, Jeremy Neufeld at Niskanen… It’s basically a part-time job of his just writing, debunking Center for Immigration Studies’ papers and reports. Because all these places are just a complete font of misinformation.

Elizabeth Cohen: Yeah. I mean, I feel bad for them. It’s hard to do your job when immigrants commit crimes at lower rates or the same rates as native born Americans. And when immigrants contribute to the economy and expand the economy, and actually, their presence creates more, all these things are just not working for FAIR and CIS. And yet the people who are there have to keep trying to make immigrants look-

Will Wilkinson: Yet they’ve been successful. I mean, that is a crucial point. What is the point of any of this?

Elizabeth Cohen: Yeah.

Will Wilkinson: Right. And so, we got this incredibly militarized border. The President is trying to build this massively expensive wall that he’s seizing people’s property to build. We’ve got a network of basically concentration camps. We’ve been stripping children from their parents. We’re leaving people who’ve done nothing except try to get to the United States because they’re seeking asylum. We stow them in these prisons that have degrading subhuman conditions. Where-

Elizabeth Cohen: Which we pay a ton of money.

Will Wilkinson: Yeah, where they’re starved, they’re sexually abused, they’re beaten some of them are children. But it turns out, immigrants reduce crime. They’re good for the economy. It’s just like you can’t find a negative consequence. So, what is all of this for? Why are we spending massive amounts of money? Billions and billions and billions and billions of dollars to brutalize people to infringe the basic rights of citizens and noncitizens alike? What is the point of any of it? What do we get out of it? Why?

Elizabeth Cohen: Yeah, I mean, it’s really interesting to me to look back. And starting in the early ’90s, you really do see success on the part of nativists. And Clinton was no friend to immigrants. This was somebody who did a lot, just really did as much as anybody, I think, in my opinion, including Donald Trump to develop the massive, massive, incredibly expensive and deadly deportation regime that we have in the United States.

And then there’s right wing talk radio going on throughout this whole period that’s like really recognizes and the Tea Party seizes on this around 2009 like that this is something you can stir people’s emotions with. And you don’t have to have facts on your side, if you tell them there’s an enemy in the country. You can get people to sign on to things that are very, very much directly contra their own material interests, if you get their emotions riled up. And this is just something that American’s nativism is something that a lot of countries, citizens can get riled up about.

And you look at what Lou Dobbs was doing in the early 2000s. And sometimes I’m like, why, why? Oh, right, because you’re trying to accrue the power that comes with leading a large group of people in this direction. And this is what gets them to come your way.

Will Wilkinson: So, they’re tapping into something that’s visceral, but what is the fear? And I think your book really strongly traces that there has never been really any justification for our immigration regime other than white supremacy, other than a certain kind of racism. So, the reason that we do it is because some people really viscerally feel that they’re entitled to a country that has a very particular ethnic and demographic composition. And that if it doesn’t, it’s a threat to them. It’s not their home or something.

Because sometimes I get frustrated when talking about immigration policy with even friends who are a little bit on the right, who act as if it’s just completely seedy or unfair to suggest that there’s any racial motivation behind wanting to further militarize the border or behind wanting to reduce not only illegal, but legal immigration.

Elizabeth Cohen: Yeah. In the 19th century, that 500 cubic feet of air in a dwelling was obviously not meant to just get at Chinese people, that was pure coincidence.

Will Wilkinson: Right, in reading your book, and just seeing the legislative history of every one of these landmark moments in American immigration policy, it’s very clear that the thing driving it is the strong interest of certain elite groups, who are able to recruit popular sentiment to their side behind making America a certain kind of white ethno state. And it’s really actually hard to find one of these big moments where that isn’t just playing, if not the dominant role, an absolutely essential role.

Elizabeth Cohen: Yeah, I mean I try to sometimes inhabit the mind of somebody who is feeling the pull of these two different arguments and do so sympathetically. And I think, well, asking people to believe that there are more jobs in the country when immigrants are present it’s kind of counterintuitive.

Will Wilkinson: Sure.

Elizabeth Cohen: That’s not something I expect people to just be born knowing. So, there are these moments where you’re asking people to take a leap of faith on something that isn’t consistent with what their gut is telling them. But then you also can look at public opinion. And when you ask good public opinion, do good public opinion surveys, you’ll see that through the ’90s, through the early 2000s, and through recently, if you just ask people about the idea of immigration and immigrants, they’re still pretty positive.

And I think that’s a testament to the fact that this is primarily an elite-driven movement that benefits elites and that left to their own devices. Is there racism in the United States? For sure there is, but people also are able to see that immigration has a really important part in what has and will continue to make this country strong if we do continue to be a strong, powerful and affluent nation. So, it’s there, in public opinion, but you really don’t see very pure intentions in people who are writing legislation and passing it and signing it.

Will Wilkinson: Yeah. And this is one of those things these days where as you say, the public sentiment is pretty strongly on the side of immigrants are great, a very clear majority prefers to either maintain or increase the rate of immigration. No one, basically no one approves of what the Trump administration has done to the refugee program, which is to reduce refugee admissions to basically nothing.

Elizabeth Cohen: Yeah.

Will Wilkinson: Right. Just a tiny sliver of support for just letting refugees completely dangle, but we get it anyway. And that’s one of those issues, which was a function of the structural biases in our system where it just can’t reflect public opinion in a very straightforward way because of the low population, low density bias of the Senate and the Electoral College.

Elizabeth Cohen: Yeah. But I mean, all these categories or listing are artifacts of law. The idea that a refugee is different from an asylum seeker is different from person who’s gaining family reunification or has high skilled worker visa, and then maybe gets an extraordinary ability, change in status. None of these are descriptive categories of people’s lives. People’s lives are complicated and aren’t reflected by law. These are the things that legislators made up and that people are loosely enforcing on the ground.

And one of the things that they’ve been successful in doing is creating this narrative of good immigrant, bad immigrant, DACA good young people, illegal, bad older people, criminal, noncriminal. But if you were to simply take away all of that legal infrastructure, and look, you would see complicated lies. But in most cases, almost all cases free movement is good for the people doing the moving. And for the people who are receiving anybody who moves into where they are. But this narrative of there are good immigrants and bad immigrants and then shrinking the category of good immigrants to almost nothing that has mobilized a lot of people’s emotions.

Will Wilkinson: What is an aggravated felony?

Elizabeth Cohen: An aggravated felony is another made up thing. So, felonies, as most listeners will know, are serious crimes. They usually come with a five-year sentence. And an aggravated felony is just sticking aggravated in front of a felony and then saying that these are crimes, they came with a one-year sentence, but we’re going to treat them like felonies for the purpose of anybody in the country whose foreign born and not a citizen.

And so, aggravated felonies come into play in 1996, when they become a means through which you can incarcerate and deport people very often without almost any due process. In some cases, you can be deporting people in an expedited fashion before they’ve barely been in the country and had a chance to demonstrate whether they could be here in a lawful way. And so, aggravated felonies become a big source of the now it’s the ICE prison population and deportations after 1996. And it’s just, in many cases, pretty minor infractions. You can have a DUI.

Will Wilkinson: So, this is one of the mechanisms that’s used to basically shrink the population of good immigrants, because if you’ve come here undocumented, and you-

Elizabeth Cohen: All of a sudden, you’re a criminal when-

Will Wilkinson: And you’ve done anything, like if you littered. All of a sudden, it’s an aggravated felony. So, to a normal American voter, that category sounds like …

Elizabeth Cohen: A felony.

Will Wilkinson: Right? Yeah, it sounds like a felony. And it’s just this made up thing that hyperbolically inflates any …. Even technical infraction-

Elizabeth Cohen: And because it lowers the barrier to deporting somebody so that people can get caught up having actually done nothing, but because now we have all these ways without any due process to deport people, they’re just whisked out of the country in large numbers, but not before we spend a lot of money. It’s very expensive to incarcerate and deport people per person, many, many thousands of dollars. So, there’s also this industry that gets built up around doing this that’s profiting from it and really-

Will Wilkinson: These private detention facilities and yeah.

Elizabeth Cohen: And they’re lobbying their parts out, especially when Obama says he’s not going to use private detention anymore. They’ve been lobbying their hearts out throughout the 2000s. And then when Trump comes into office and is like that’s out the window. We love to spend money on private, more expensive, private prisons.

Will Wilkinson: Yeah, so, we’re just spending billions of dollars and enriching a bunch of rich people to inflict completely pointless cruelty on a lot of totally innocent people.

Elizabeth Cohen: Yeah. And in the process, hurt our own economy and hurt our communities.

Will Wilkinson: It’s such a great idea. Yeah. So, let’s skip ahead. People will need to pick up Illegal to get the end of the story about how we got from the ‘86 bill to the current, incredibly militarized and abusive immigration jackboot state that we now have, which is a direct threat to everybody’s basic liberties because they’re unconstrained. They’re unsupervised. They don’t really recognize the Constitution of the United States as something that has binding authority on their behavior. They take their mandate to be to kick people out of the country.

Elizabeth Cohen: At all costs.

Will Wilkinson: At all cost. So, they should definitely read your book to get the end of the story. But what can we do to make it better?

Elizabeth Cohen: So, we’ve got some bad agencies. And I think I wouldn’t disagree with anybody who says we made a terrible mistake in response to the 9/11 attacks when we created Department of Homeland Security because we did it hastily and it was a bad reorganization of the federal government. It’s just dysfunctional. It’s hard to have any accountability in that agency. So, wipe that slate, pretty clean.

But it’s also the case that we simply cannot. We are not situated in a way that permits us to be a functional society if we do not have a way to put people on a pathway to citizenship once they’ve been in this country for a period of time and we have such a backlog of people who’ve been in this country for decades and they have no other home. They’re, in many cases, have US citizen family, but they have no way to get right with the documentation requirements.

And we are not a society that can manage that. It just doesn’t work for us because we do need immigration into the United States very badly. So, I argue in the book that we ought to incorporate a rolling registry, that we ought to be updating that date automatically.

We probably want to bump it up significantly and then put ourselves on a gradual schedule, so that we don’t have people who’ve lived in this country for long periods of time in citizenly ways as they said in the 1920s. But who are our co-citizens who are Americans, even though they’re undocumented, but with no way to actually become citizens. So, I argue that we need to really change that. And that’s one of the most important contributions I’m trying to make with this book.

Will Wilkinson: Yeah, I love the updating the registry. What date would you move it to? So, this is just a way again, resetting the kind of statute of limitations clock, making people eligible for regularizing their status if they came here before a certain date. What date would you pick?

Elizabeth Cohen: I think if it’s in the ’70s now, we’re going to have to take a big jump. And if we take a big jump, it’s not going to actually have that much bite at the outset. But then we want to put it on a schedule of updates that I think means that nobody can be in the country for somewhere more than between five and 10 years without having a way to become a citizen. Because five years, and this is a part of other work today, five years is a really, really common, settled upon amount of time in which we think that people become citizens.

So, if you become a legal permanent resident, in most cases, you’ll wait five years before you can naturalize a lawful permanent resident. And that’s something we agree on for so many contexts. And so many other countries also agree on that. So, I think we ought to be doing something along those lines, so that people who do actually want to stay, not all of our immigrants want to stay, but people who do can have the opportunity to become citizens.

Will Wilkinson: The point that runs through the book is just really important to underscore that not having a way to integrate undocumented immigrants to get them so that they can have papers, so that they can become legal permanent residents, so that they can become citizens, you’re just going to get a growing pool of noncitizens. And given our current law, this group of people is denied most of what we consider to be completely basic nonnegotiable rights, all of these due process rights that a lot of us take for granted, these people are not afforded.

But if you have that in a growing population of people who have such a degraded status in the law relative to citizens, they become subject to abuse, domination and exploitation that builds in a kind of habit in your political culture that that kind of domination and exploitation and abuse is okay for some people, but then it becomes okay for more people. And so, we can’t protect our rights if we’re allowing other people’s rights to be so systematically denied.

Elizabeth Cohen: Yeah, it’s always good to remember that things that are being done to others in your name can be done to you as well. There’s no reason that having an incredibly heavily armed well-resourced police force in the United States, federal police force, there’s no reason to think that that wouldn’t ultimately also have consequences for the people in whose name it was originally done.

Show me a country in which that story ended well for the people doing it. It just doesn’t. That’s not how it goes. So, I agree. And also, what do we call ourselves if we’re a country with a large, many, many millions of people who work here, who we simply forced to do unlawful things, we are compelling them to do unlawful things. Why would we want to make it hard? Forty percent of undocumented immigrants pay federal income tax. But why do we want to make it so hard for them to do that? Why do we want to make them have to lie to do that? Just make it easy to do that.

Will Wilkinson: Well, I agree with you. I know many Americans don’t. But hopefully-

Elizabeth Cohen: But more do, more do.

Will Wilkinson: More do. And hopefully, people can come around to sanity sooner or later. Because it’s just not good for anybody. I just don’t think we had to hurt people in a-

Elizabeth Cohen: Yeah, basic, basic rule of societies. Yeah.

Will Wilkinson: Yeah. But I think it’s a fundamental tension in our history, just between some sense of racial hierarchy versus these egalitarian ideals of equal status and equal rights. That’s always our story. I mean, I think we all get bored of it. But that’s the story here too. That either we treat each human being as equal in sort of dignity and worth and entitlement to justice, or we don’t. And then if you don’t, then it’s just up in the air. It’s up for grabs, what the principle is that you’re going to use to organize your society and set the rules for how people can treat each other. And it’s always going to end up-

Elizabeth Cohen: And if you think that [crosstalk 01:27:33] is whiteness, watch out because you’re probably not white.

Will Wilkinson: Yeah, and then it just comes down to who can wield the power, ultimately. And that’s not a great place to be. But that seems to be where we’ve been drifting. And it seems crucial to arrest that drift.

Elizabeth Cohen: Yeah, but it is retrievable. We can pull ourselves back. We’ve done it before. I’m not saying we definitely will. But we have the material there to do something much better than what we’re doing if we want to.

Will Wilkinson: We can do it, America. Immigrants, they get things done. All right. The book is Illegal: How America’s Lawless Immigration Regime Threatens Us All. Elizabeth Cohen, thanks so much for coming on.

Elizabeth Cohen: Thanks for a great conversation.

Will Wilkinson: Model Citizen is brought to you by the Niskanen Center. To learn more about the Niskanen Center, visit That’s N-I-S-K-A-N-E-N Center dot org. To support this podcast or any of our programs, go to