Friday, August 28, 2015

Price on "Health Security" and Mentally Ill Immmigrants

Polly J. Price, Emory University School of Law, has posted Infecting the Body Politic: Observations on Health Security and the 'Undesirable' Immigrant, which will appear in the Kansas Law Review 63 (2015): 917-52:
Sovereign nations may refuse admission to migrants who are either physically or mentally ill or disabled. Nations have commonly preferred an ideal class — the physically and mentally healthy — to the “undesirable” migrant who is unhealthy or disabled. Both exclusions are traditionally justified as a nation’s prerogative to choose its membership. Nations defend exclusionary safeguards by the need to protect their citizens against contagions from the outside world. Immigrants who are physically or mentally disabled do not pose the same threat, but they may require state services and support, what U.S. immigration law terms a “public charge.” Mental illness is a different category altogether, in that public safety may be an issue, in addition to the need for state welfare expenditures.

Mental disorder as a disqualification for entering the U.S., and accordingly disqualification for U.S. citizenship, has a long history. On two notable occasions in the past, Congress has focused specifically on mental health of would-be immigrants — the first decade of twentieth century, and again in the early 1950s. At the same time, state officials desired to rid themselves of “undesirable” non-citizens housed in state institutions. The solution was to collaborate with the federal government to deport them on mental health grounds. In 1926, for example, 796 persons were deported for “insanity” or “epilepsy,” 257 for “other mental conditions,” and 887 as “likely to become a public charge,” out of nearly 11,000 total deportations that year.

With established interests to protect, the United States along with every other nation imposes constraints on citizenship and migration by self-selection. The screen of “health security” is used to cover policy choices — whether to assume the risk of successfully managing contagious disease; whether to assume the burden of managing mental illness — that have shaped immigration policy for more than a century. The foremost difference is that contagious disease presents a verifiable condition, where mental illness has been defined in such hazy terms as to be applicable to just about anyone — or at least, as Justice Douglas argued, anyone “unpopular.”

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