Abstract

Excerpted From: Cori Alonso-Yoder, Imperialist Immigration Reform, 91 Fordham Law Review 1623 (April, 2023) (140 Footnotes) (Full Document)

On the second full day of his administration, President Donald J. Trump received a memorandum outlining several policy objectives in the realm of immigration law. The memo urged the president to issue an executive order that would mandate the drafting of a report, “in consultation with the Secretary of State and the Governor of the Commonwealth of the Northern Mariana Islands, describing steps taken to combat the problem of ‘birth tourism,’ whereby individuals travel for the purpose of giving birth in the United States.” Although the president ultimately never issued the proposed executive order, this proposed policy highlights the obscure yet fascinating system of immigration and citizenship in the Commonwealth of the Northern Mariana Islands. Congress has subjected the [Commonwealth of the Northern Mariana Islands] to its own form of immigration legislation and regulation, despite the [Commonwealth of the Northern Mariana Islands]'s status as a U.S. territory. It is a system that few Americans know exists and that surprisingly few legal scholars have explored. This is especially stunning considering that the Trump administration passed significant immigration reforms that apply to the [Commonwealth of the Northern Mariana Islands] only.

In a 2019 opinion for the right-wing think tank Center for Immigration Studies, David North questioned why the Northern Mariana Islands Long-Term Legal Residents Relief Act got such little attention. Aside from the Center for Immigration Studies, the only reporting on this change in immigration law was done by news outlets in the [Commonwealth of the Northern Mariana Islands]. In that coverage, [Commonwealth of the Northern Mariana Islands] journalists underscored the need for federal cooperation from the executive and legislative branches to secure lawful status for residents of the commonwealth. One article quotes [Commonwealth of the Northern Mariana Islands] governor Ralph Deleon Guerrero Torres seeking congressional support and highlighting a challenge in lobbying for an immigration fix: “Only three people in the [congressional] committee have been in the [Commonwealth of the Northern Mariana Islands] ....”

In this Essay, I explore the history of U.S. territorial expansion, lawmaking in the territories, and limitations on legal protections for noncitizens to provide context for understanding imperialist immigration reform in the [Commonwealth of the Northern Mariana Islands]. In Part I, I discuss the history of U.S. involvement in the Northern Mariana Islands and the creation of the political and legal foundations that would establish it as a territory of the United States. As part of the journey toward the [Commonwealth of the Northern Mariana Islands]'s association as a territory, the commonwealth secured an exemption for itself from key areas of federal law, including immigration. Part II explores the history of U.S. immigration law to demonstrate the stunning and anomalous nature of the [Commonwealth of the Northern Mariana Islands]'s immigration exemption. This history has often reflected efforts to legislate and litigate attitudes about racial difference. Part III weaves this history of racially motivated immigration law into a discussion of the constitutional law decisions governing the territories to highlight the similarities between the legal treatment of noncitizens and residents of the territories. Part IV applies this legal and historical context to explain the anomalous status of federal immigration law in the [Commonwealth of the Northern Mariana Islands], including by invoking Professor John A. Powell's theory of the law's perpetuation and protection of spaces deemed “white.” I conclude that the U.S. government has constructed the [Commonwealth of the Northern Mariana Islands] as a “nonwhite” space, resulting in an alternative system of immigration law.

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U.S. immigration policy has been one of the central and most divisive national policy debates, but the federal government's attitude toward the [Commonwealth of the Northern Mariana Islands] has been wholly inconsistent with that larger debate. Despite claimed interests in a uniform system of immigration, Democrats and Republicans have ensured that immigration in the [Commonwealth of the Northern Mariana Islands] remains exempt from federal law. As a result, beneficiaries of the 2019 long-term resident legislation enjoy protection in the [Commonwealth of the Northern Mariana Islands] but shed that protection upon travel to other parts of the United States. They exist in a legal liminal space that keeps them confined to an island chain far from the lands and peoples that the federal government has determined enjoy different rights. Indeed, those who have arguably benefitted most from the legislation are the U.S. companies that retain a permanently disenfranchised workforce. Over a hundred years later, Chief Justice Fuller's dissent in Downes speaks presciently to the [Commonwealth of the Northern Mariana Islands]'s imperialist immigration reform: “Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period.”

Associate Professor of Fundamentals of Lawyering at The George Washington University Law School.