The Executive Order's "Alien Registration" Provision

Robert H. Jackson, FDR, and the Alien Registration Act of 1940

President Franklin D. Roosevelt swears in Robert H. Jackson as associate justice of the U.S. Supreme Court, July 11, 1941. Heritage Image Partnership Ltd./Alamy.com

The new DOJ policy memo (available here) on immigration enforcement priorities directs prosecutors to charge the most serious immigration violation that is “readily provable” (a directive consistent with those of previous Republican administrations). One provision the memo refers to, 8 U.S.C. § 1304, makes it a misdemeanor, punishable by a fine of $100 or up to thirty days in jail, for any “alien” over the age of eighteen to fail to carry his “alien registration or alien registration receipt card.” Another provision in the DOJ memo, 8 U.S.C. § 1306, makes it a misdemeanor, punishable by a fine of $1,000 or up to six months in jail, to fail to register. (Registration is required by 8 U.S.C. § 1302).

[And immigration lawyers, take note: Section 1306(b) makes it a misdemeanor, punishable by up to $200 or thirty days in jail, to fail to notify the government of any change of address within ten days of moving. Even late-filed AR-11s and EOIR-33s could become a basis for prosecution.]

The statutory registration requirement goes back to the Alien Registration Act of 1940, but no such comprehensive requirement has existed for many years, as articles by Jonathan T. Weinberg and Nancy Morawetz & Natasha Fernández-Silber have detailed. Certain documents issued to lawful immigrants qualify as applications for registration, but persons unlawfully present aren’t eligible to file any of those. Morawetz & Fernandes-Silber concluded that “[m]ost noncitizens in the United States are exempt from registration and carry requirements pursuant to statute, regulation, administrative design, and systemic inefficiencies.” Notably, coming to the country and filing an application for asylum – a lawful process under the Refugee Act of 1980 – does not qualify as “registration.”

Trump’s executive order does not propose to remedy the omission. Section 7 of Trump’s executive order requires DHS to

• “Immediately announce and publicize information about the legal obligation of all previously unregistered aliens” to register;

• “Ensure that all previously unregistered aliens in the United States comply with the requirements” to register; and

• “Ensure that failure to comply with the legal obligations of [the registration statute] is treated as a civil and criminal enforcement priority.”

The executive order seems to suggest a couple of options to accomplish this, both of which are of questionable legality: Either DHS can criminalize failure to comply with a requirement that was impossible for some people to comply with – tantamount to criminalizing a status (as opposed to conduct), which was ruled unconstitutional under the Eighth Amendment in Robinson v. California. (Of course, there are several possible immigration violations relating to the action of unlawful entry or re-entry into the country, which have been and continue to be bases for prosecution.)

Alternatively, the executive order might be ordering DHS to create a registration process for undocumented people only and require them to register, which Weinberg has argued would violate the Fifth Amendment right against self-incrimination.

If DHS were to create one registration process for all noncitizens, it might arguably avoid these constitutional infirmities (if few incriminating details about entry and status were required), but this certainly doesn’t appear to be what the executive order contemplates.

An Early Day in the Life of “Alien Registration”

Since reading the executive order’s provisions about registration earlier this week, I’ve been thinking about one of the most extraordinary documents I discovered in the archives while researching a book about the immigration courts. FDR moved the immigration courts from the Department of Labor to the Department of Justice in 1940 in a pre-war effort to catch spies. Part of DOJ’s new responsibilities included overseeing a process for noncitizens to comply with the Alien Registration Act.

The Library of Congress has the papers of Robert H. Jackson from the year and a half he spent as attorney general from January 1940 to August 1941. It still blows my mind that you can just walk into the Library of Congress, apply for a reader’s card, and have the Reading Room pull the very files and papers that sat on Jackson’s desk. Historians of the digital era won’t know the chill that goes down your spine when you see and hold the very documents that made history.

The particular document I’m thinking of was a memorandum from Jackson to the file. There’s no indication he ever sent it to anyone. But Jackson was a lawyer, and lawyers are trained to document things that look like they might be trouble. It appears he came back from a meeting at the White House, picked up his Dictaphone, and made sure history knew that none of what he was about to discuss was his idea.

Jackson and Roosevelt Have Lunch

Jackson’s memo described a lunch meeting he’d just had with the president. I’ll share here what I wrote about that memo in The Accidental History of the U.S. Immigration Courts:

Sometime that morning or early afternoon [of Tuesday, May 21, 1940], the Department of Justice received a phone call from the White House requesting that Attorney General Jackson come to lunch with the President at 1 p.m. Though this was hardly the type of message that would be ignored in any event, the caller was urgent; the phone message from Jackson’s secretary said that “[t]hey would like an immediate response.”

May is a beautiful month in Washington. As Jackson went to the White House, it was 76 degrees, with only moderate humidity for the capital. There was a light breeze from the northeast. The six-block trip up Pennsylvania Avenue from the building that has been home to the Justice Department since 1935 would have been a pleasant one that day.

Jackson arrived at the White House and the two men sat down to eat. As soon as lunch had been served, the President got to the point. He handed Jackson a document that proposed immediate transfer of INS from the Department of Labor to the Department of Justice. Then “[h]e turned to his soup and left the move to me,” Jackson said.

After taking time to read the document, Jackson once again tried to dissuade Roosevelt from making the transfer. First, he found himself in an unenviable position, “one which no man could long perform acceptably in a period of public excitement.” Or no woman, perhaps – Jackson could not have envied [Labor Secretary Frances] Perkins’ ordeal of impeachment threats and public calumny over the Bridges case. Jackson made the sobering observation to Roosevelt that “there was somewhat the same tendency in America to make goats of all aliens that in Germany had made goats of all Jews.”

Jackson suggested an alternative: Instead of transferring INS to Justice, the President should create a special wartime agency to deal with alien control, sabotage, espionage, and subversive activities. Those were more properly defense activities than the ordinary administration of justice, Jackson told Roosevelt, and their methods should be preventive, not remedial. “He was not, however, persuaded,” Jackson recalled later that day. Roosevelt said that immigration needed to be in Justice, “as it was the only place that was prepared adequately to handle it.”

That was the end of the matter. Roosevelt had rejected the advice of the government’s top lawyer. Jackson accepted his president’s decision and began making arrangements for Solicitor General Francis Biddle to handle the transition.

Biddle’s first assignment, as administrator of the new immigration office in DOJ, was to set up the registration process. That summer, all noncitizens in the country were required to go to a U.S. Post Office for registration and fingerprinting. After the war, though, the public had little appetite to maintain the expensive system, and it gradually fell apart.

The Alien Registration Act and the president’s transfer of the immigration courts to DOJ were part of a program to catch and deport a suspected “Fifth Column” of Nazi spies lurking within the country. The unfortunate Biddle got the nod to administer the registration process because it was summer; the Supreme Court session was about to end, leaving the solicitor general with a light load.

Research after the war would reveal that there was no Fifth Column. The Nazis distrusted outsiders too much to share their plans with anyone beyond their inner circle. Nazi propaganda minister Joseph Goebbels’ claim that they had a “fifth column” working inside Allied countries turned out to be no more than a strategy to undermine Allied morale. The one known attempt by Germany to infiltrate and sabotage U.S. infrastructure, Operation Pastorius in June 1942, turned itself in.

Justice Jackson’s Warning

As attorney general, Jackson had warned Roosevelt that putting the immigration agency into DOJ to catch spies was unnecessary, ineffective for its purposes, and a danger to civil rights. He felt strongly enough about it that he went back to his desk and dictated or typed a memo, leaving it there for me to read eighty years later. I’m wondering what Jackson – who would later become a Supreme Court justice and the lead U.S. prosecutor at the Nuremberg trials – would say about the new executive order’s “alien registration” provisions.

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