Monday, February 17, 2014

Rathod, "Distilling Americans: The Legacy of Prohibition on U.S. Immigration Law"

Jayesh Rathod (American University - Washington College of Law) has posted "Distilling Americans: The Legacy of Prohibition on U.S. Immigration Law." The article appears in Volume 51 of the Houston Law Review (2014). Here's the abstract:
Since the early twentieth century, federal immigration law has targeted noncitizens believed to engage in excessive alcohol consumption by prohibiting their entry or limiting their ability to obtain citizenship and other benefits. The first specific mention of alcohol-related behavior appeared in the Immigration Act of 1917, which called for the exclusion of “persons with chronic alcoholism” seeking to enter the United States. Several decades later, the Immigration and Nationality Act of 1952 specified that any noncitizen who “is or was . . . a habitual drunkard” was per se lacking in good moral character, and hence ineligible for naturalization. Although the “chronic alcoholism” provision was eventually removed from the grounds of exclusion, the habitual drunkard clause remains part of the statute, vexing both scholars and practitioners, and casting a shadow over many different forms of relief.

This Article uncovers the complex history of the habitual drunkard clause and similar alcohol-related norms in U.S. immigration law. In so doing, the Article explores a more transcendent question: how do we explain the preoccupation with noncitizen drunkenness in U.S. immigration law and in the immigration system at large? To guide both inquiries, the Article describes changing perceptions of alcohol use in U.S. history, from colonial times, to the Prohibition Era, to the present. To accompany this historical overview, the Article describes the legal regulation of drunkenness and alcohol-related behavior, uncovering its muddled normative foundations. The Article argues that different iterations of alcohol-related regulation since the nation’s founding — including, most notably, the Prohibition Era — have operated as forms of social, economic, and/or political control over noncitizens. Indeed, a complex set of factors has fueled these laws, including entrenched fears and stereotypes about immigrants, the desire to advance particular values and a vision of society, race- and class-based animus, and the simple preservation of power. These subterranean concerns continue to nourish narratives about immigrant alcohol use and its resulting ills — narratives that have captured the public consciousness, but are often untethered from empirical reality.

Having detailed the history and complexity of alcohol-related norms in U.S. immigration law, the Article examines the present-day utility of the habitual drunkard clause, a provision that has endured for more than six decades. The Article urges the elimination of the clause in light of contemporary understandings of alcohol use and complementary provisions in immigration law that screen for alcohol dependence and related conduct. This legislative fix, while important, is an initial step in curbing the broader legacy of Prohibition, which persists today in the exercise of discretion in immigration enforcement, adjudication in immigration courts, and in recurring legislative proposals targeting immigrant alcohol use.
Read on here.