“No Relaxation in Favor of Jews in Germany that Can Be Made Consistently with the Law”
Listening in on a meeting at the State Department, May 29, 1933
Thirty-one days from the new administration, I’m already spending nearly every day talking to clients and other callers who are panicking. Trump has promised to reverse policies that people have relied on for years or decades in making decisions about their lives. Because immigration policy is governed as much by executive policy as by law, people can take lawful action one day, and the next day find themselves stripped of their jobs, their homes, their families, even their lives. Due process protections and restrictions on ex post facto laws protect U.S. citizens from this kind of thing. Not so for noncitizens.
This week alone, I’ve seen four people sobbing (five, if you count me last night at 2 a.m.). If you’re an immigration lawyer, I’m sure you know what I mean. If you’re not, I wish I could provide details. Among my friends and family, there are many people who favor strict border security, but I can’t think of one of them who could sit across the table from real people, hear these heartbreaking stories, and not care. They would care. They wouldn’t want this.
But obviously I can’t provide details, because they’re confidential. Instead, I’ll take a deep breath and return to the archives, where I go to search for meaning, where I have had little time to go in recent weeks.
A Meeting at the State Department, May 29, 1933
This morning, I was sifting through images I’ve taken from the papers of Wilbur J. Carr, who ran the U.S. consular service for the State Department for nearly four decades leading up to World War II.
I opened a document I’d forgotten about: a memo dated May 31, 1933, entitled “Measures Considered with Respect to the Attitude of the United States toward the Jews in Germany.”
Two days prior, the author said, Secretary of State Cordell Hull, Undersecretary William Phillips, and the author had discussed whether the United States could or should do anything to assist German Jews suffering persecution. The document is unsigned, but the document was in Carr’s files and the author describes taking actions that would be consistent with Carr’s duties. The voice – measured, careful, bureaucratic – sounds like Carr as well.
The memo begins:
As I understand the matter, while in general it is recognized that strong anti-Jewish feeling exists in Germany and considerable persecution has occurred, there is nothing which the United States can do to alleviate the condition.
The U.S. could not interfere with internal matters of the German government, the author stated, and even if the U.S. were to “make representations to Germany on the ground of humanity,” it might just make the situation worse. Moreover, the time for such action “has now passed and any such representations now made would have the effect of reviving an issue which has subsided ….”
Things were somewhat better in Germany, the consul in Berlin had informed State – largely because Jews had been leaving the country in large numbers. The author of the memo did note, however, that such departures had recently slowed, because Germany now required every German citizen leaving the country to obtain a special visa from the police.
“No Relaxation in Favor of Jews in Germany that Can Be Made Consistently with the Law”
Making “representations” to Germany is one thing. But should the United States grant visas to German Jews? After concluding against statecraft, the State officials turned to “The Question of Facilitating in Some Manner the Entry of Jews from Germany into the United States.” The author wrote,
At the same conference with the Secretary, it was explained that if our view of the public charge provisions of the Immigration Act of 1917 is correct, as it is believed that it is, there is no relaxation in favor of Jews in Germany that can be made consistently with the law. The only other question is whether we are certain that Jewish applicants for visas are receiving from consuls all of the consideration to which they are reasonably entitled in light of their unfortunate situation.
Personally, the author wrote, he believed that they were, but just to be sure, he offered to send a letter to the Consul General in Berlin and encourage him to make sure that consular officers were extending reasonable courtesy and offering advice to Jewish applicants, where appropriate.
The Secretary approved, stipulating, however, that there should be no relaxation of the application of our law, but merely a precautionary step taken to insure that in applying it fully and completely, there should be no harshness and no lack of considerate treatment of the alien.
“Likely to Become a Public Charge”: Is the Depression Reason Enough?
What legal interpretation does the author refer to that could not be “relaxed” for Jewish applicants?
The author explains that, in the Immigration Act of 1907, Congress had expressly excluded “persons likely to become a public charge.” Soon after, immigration inspectors had used that language to exclude to some Russian immigrants who had intended to settle in Portland, Oregon, pointing to “overstocked conditions of the labor market at the point of destination.” In 1915, the Supreme Court had overturned that decision in the case of Gegiow v. Uhl. The Court said that labor market conditions, by themselves, could not be used to determine that someone was “likely to become a public charge.” The 1907 act placed that ground of exclusion in a list, sandwiched between “paupers” and “professional beggars” and including “idiots,” “imbeciles,” and “insane persons.” The Court concluded that only the condition of the individual, not of the labor market, could justify a finding that the person was “likely to become a public charge.”
In 1917, Congress amended the immigration aw. They moved the language excluding persons “likely to become a public charge” out of the list of personal characteristics to a later point in the paragraph, immediately following an exclusion for person brought for contract labor. The Senate Report said the amendment was intended to overcome the Court’s objection.
Applying the Public Charge Rule in 1933
The 1917 immigration law, as State interpreted it, thus permitted the consular officers to consider “overstocked conditions of the labor market,” and to deny visas based on the fact of the U.S. economy alone, without regard to the individual applicant’s circumstances. The author of the memo does not explain why State read the law to require consular officers to refuse visas on that basis, nor what showing of support (if any) might overcome the apparent presumption that German Jewish applicants were “likely to become a public charge.”
Word seems to have gotten out among Jews in Germany that few would succeed in visa applications before the U.S. consulate. “This is due to the fact,” the consul general in Berlin had written that April, “that the difficulties in securing visas for the United States are well known and the Jews without resources are obliged to remain in the country.” Those with property, he said, preferred to go to Holland or Switzerland.
There was nothing more that could be done, the author of the memo concluded:
It would appear, therefore, that the Consulate General is showing as much consideration as could well be expected to those Jews who apply for visas for the United States and that his attitude towards them is one of sympathy for their unfortunate condition, but only a limited number of the Jews may apparently reach the Consulates for visas because of restrictions which are placed by the German Government upon their leaving Germany. Such difficulties as are encountered at the Consulate General would appear to grow out of the public charge provision of the 1917 Immigration Act which raises the question whether we are justified in taking a different view of that provision from that which has been taken since 1930.
The author never definitively answers that question, merely reviews the legislative history and the Gegiow case to support his initial opinion that “there is no relaxation in favor of Jews in Germany that can be made consistently with the law.”
The Modern Public Charge Rule
The public charge rule still exists in U.S. law, and has been the subject of a tug-of-war since the first Trump administration. The Biden administration reinstated the longstanding interpretation that the rule applies only to people who will require long-term institutional care. So far, the president-elect has not indicated an intent to recharge the rule, though some policy commentators anticipate he might.