1. 98 Cong. Rec. 4123 (1952).

2. Ibid.

3. U.S. Congress, House, Revising the Laws Relating to Immigration, Naturalization, and Nationality, H.R. 5678, Committee on the Judiciary, House, Report No. 1365, 14 February 1952 (hereafter Report No. 1365) (Washington, D.C., 1952), 145.

4. Ibid., 325.

5. 98 Cong. Rec. 4123 (1952).

6. These efforts are discussed in detail below.

7. For example, see Divine, Robert A., American Immigration Policy, 1924–1952 (New Haven, 1957), 164–91;Google Scholar Bennet, David H., The Party of Fear: From Nativist Movements to the New Right in American History (Chapel Hill, 1988), 302–30;Google Scholar Tichenor, Daniel J., Dividing Lines: The Politics of Immigration Control in America (Princeton, 2002), 188–96;CrossRefGoogle Scholar Daniels, Roger, Guarding the Open Door (New York, 2004), 113–20;Google Scholar Ngai, Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, 2004), 236–39;Google Scholar Zolberg, Aristide R., A Nation by Design: Immigration Policy in the Fashioning of America (New York, 2006), 311–17;Google Scholar Kanstroom, Daniel, Deportation Nation: Outsiders in American History (Cambridge, Mass., 2007), 173–75;Google Scholar Bon Tempo, Carl J., Americans at the Gate: The United States and Refugees During the Cold War (Princeton, 2008), 26–33;Google Scholar Tananbaum, Duane, Herbert H. Lehman: A Political Biography (Albany, 2016), 355–58. On the origins of changes to Asian exclusion, see alsoGoogle Scholar Reimers, David M., Still the Golden Door: The Third World Comes to America (New York, 1992), 14–21, 18, 37–50;CrossRefGoogle Scholar Hsu, Madeline Yuan-yin, The Good Immigrants: How the Yellow Peril Became the Model Minority (Princeton, 2015), 91–126.Google Scholar

8. Jack Wasserman, “The Immigration and Nationality Act of 1952—Our New Alien And Sedition Law,” Temple Law Quarterly 27, no. 1 (Summer 1953): 62–89 (77–78); Divine, American Immigration Policy, 135–40, 164–69, 171, 180–83; Jerome E. Edwards, Pat McCarran: Political Boss of Nevada (Reno, 1982), 132; Tichenor, Dividing Lines, 188–96; Ybarra, Michael J., Washington Gone Crazy: Senator Pat McCarran and the Great American Communist Hunt (Hanover, N.H., 2004). 448–51, 463, 479–80, 632–33;Google Scholar Zolberg, A Nation by Design, 311; Bon Tempo, Americans at the Gate, 29.

9. See discussion in Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, CRS Report No. R44743, 23 January 2017, https://fas.org/sgp/crs/homesec/R44743.pdf.

10. Ibid., 3–10.

11. 509 U.S. 155 (1993), 172, 187 (quote).

12. Ibid., 187, 200.

13. See 878 F.3d 662 (2017), 687–88; and 585 U.S. 2018, 18–19. I return to the courts’ focus and conclusions below.

14. “A Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and for other Purposes,” S. 3455, 81st Cong., 2nd sess., Senate, 20 April 1950.

15. Rosenbloom, David H., Building a Legislative Centered Public Administration: Congress and the Administrative State, 1946–1949 (Tuscaloosa, 2000), 7–8, 14–22, 30–41.Google Scholar

16. “Administrative Procedure Act,” Proceedings in the House of Representatives, 24 and 25 May 1946, and Proceedings in the Senate of the United States, 12 March and 27 May 1946, 298, https://www.justice.gov/sites/default/files/jmd/legacy/2013/11/19/proceedings–05–1946.pdf.

17. On the direct contradiction between the McCarran and Walter positions in 1946 with the McCarran-Walter immigration bill, see testimony by Judge Simon H. Rifkind, on 21 March 1951, in U.S. Congress, Revision of Immigration, Naturalization, and Nationality Laws, Joint Hearings Before the Subcommittee of the Committees on the Judiciary, 81st Cong., 1st sess., (hereafter cited as Joint Hearings 1951) (Washington, D.C., 1951), 575.

18. Quotation is from Humphrey, 98 Cong. Rec. 5315 (1952). See also remarks by Lehman, 98 Cong. Rec. 5114 (1952).

19. Memorandum from David D. Lloyd, Administrative Assistant to the President, to President Harry S. Truman, 3 May 1952, https://trumanlibrary.org/whistlestop/study_collections/immigration/.

20. Tichenor, Dividing Lines, 28–45, 176–96. Although McCarran-Walter proponents pointed to the new inclusion of Asians in the national-origins system and the end of restrictions on naturalization as signaling the end of racial exclusion in U.S. immigration law, critics charged that the national-origins system reinforced discrimination against Asians and Southern and Eastern Europeans. For example, see the arguments by McCarran (98 Cong. Rec. 8253 [1952]) and Harry S. Truman, “Veto of Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality,” 25 June 1952. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=14175.

21. See Divine, American Immigration Policy, 135–40, 164–69, 171, 180–83; Tichenor, Dividing Lines, 185–96; Ybarra, Washington Gone Crazy.

22. U.S. Congress, Senate, The Immigration and Naturalization Systems of the United States, Report of the Committee on the Judiciary, Report No. 1515, 81st Cong., 2nd sess. (hereafter Report No. 1515) (Washington, D.C., 1950).

23. For example, see Orren, Karen and Skowronek, Stephen, The Search for American Political Development (New York, 2004).CrossRefGoogle Scholar

24. Report No. 1515, 4.

25. 39 Stat. 874 (1917); Report No. 1515, 376, 387 (quote 387).

26. Report No. 1515, 335–413.

27. 42 Stat. 153 (1924), Sec. 3, 4, 11.

28. Report No. 1515, 414–590.

29. As discussed below, the language reappears in the report’s brief appendix summarizing the omnibus immigration bill but as a catchall overriding provision in the section on “Classes of Persons who may Enter the United States” (Report No. 1515, 806).

30. Report No. 1515, 376, 380–81 (quote 380).

31. Ibid., 380. See also Daniels, Guarding the Open Door, 44.

32. Report No. 1515, 380–81.

33. 34 Stat. 898 (1907); Theodore Roosevelt, “Executive Order, No. 589,” 14 March 1907, http://www.theodore-roosevelt.com/trexecutiveorders.html; Report No. 1515, 381; Tichenor, Dividing Lines, 127–28.

34. Harry S. Truman, “Executive Order 10009—Revoking in Part Executive Orders No. 589 of March 14, 1907, and No. 1712 of February 24, 1913,” 18 October 1948, http://www.presidency.ucsb.edu/ws/?pid=78225; Report No. 1515, 381.

35. Report No 1515, 381.

36. Ibid., 806.

37. As distinct from the provisions on excludable classes under the 1917 Immigration Act. Ibid., 794–96.

38. Ibid., 788

39. Ibid., 794.

40. Ibid., 794, see also 395–97.

41. Ibid., 794, see also 396.

42. Ibid., 794. Here the subcommittee cited the Supreme Court’s statements to that effect in Knauff v Shaughnessy.

43. For example, see Jeffrey Gorsky, “An Alternative Legal Argument against Trump’s Travel Ban.” Law 360, 10 April 2017, https://www.law360.com/articles/911744/an-alternative-legal-argument-against-trump-s-travel-ban. See also the Supreme Court’s majority opinion in the travel ban case discussed below.

44. By early 1952 this provision would be shifted to Section 215 in the revised versions of the omnibus bill and in the final INA. See 66 Stat. 163–282 (1952), especially 190–91.

45. Instead the report noted that “it is the belief of the subcommittee that the present laws in regard to enemy aliens are as they should be.” Report No. 1515, 406.

46. This absence suggests that the Supreme Court’s interpretation of legislative history in June 2018 in the travel ban case was incomplete when it contended that in §1182(f) Congress was “borrowing ‘nearly verbatim’ from the wartime statute” with “one critical alteration—it removed the national emergency standard.” See 585 U.S. 19 (2018).

47. The final report was prepared in stages. See “Displaced Persons in Europe,” Report of the Committee on the Judiciary pursuant S. Res 137, Report No. 950, 80th Cong., 2nd sess., 2 March 1948 (hereafter Report No. 950) (Washington, D.C., 1948); and references to progress on the final report in “Displaced Persons,” Hearings Before the Subcommittee on Amendments to the Displaced Persons Act of Committee on the Judiciary, U.S. Senate, 81st Cong., 1st and 2nd sess., 25 March 1949 . . . 16 March 1950 (hereafter Displaced Persons Hearings 1949–50] (Washington, D.C., 1950), 1115.

48. Report No. 1515, 798. The report draws on language from Nishimura Ekiu v United States 142 U.S. 659 (1892).

49. 338 U.S. 542 (1950). On the political details of the Knauff case, see Ybarra, Washington Gone Crazy, 629–32; and 96 Cong. Rec. A1704–1705, A2178–2179, A3750–3751 (1950).

50. Report No. 1515, 798; 232 U.S. 88 (1914).

51. Ibid. The subcommittee report used the court’s language word-for-word with citation but without quotes.

52. This is evident by the absence of citations to Knauff compared to those appearing in the last chapters of the report.

53. Report No. 1515, 336. 130 U.S. 581 (1889) states: “The power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty which cannot be surrendered by the treaty making power.”

54. Report No. 1515, 336.

55. Ibid., 788.

56. Ibid., 799. These recommendations included the exclusion of “members of the Communist and other totalitarian parties,” those belonging to groups that advocate doctrines of totalitarianism, members of front organizations, and those “known” or believed to be likely to engage in subversive activity (799–800).

57. Ibid., 523–25, 797–801.

58. Divine, American Immigration Policy, 92–109; Tichenor, Dividing Lines, 159–67; Daniels, Guarding the Golden Door, 71–80. Bon Tempo, Americans at the Gate, 13–18.

59. Rebecca Erbelding, Rescue Board: The Untold Story of America’s Efforts to Save the Jews of Europe (New York, 2018), 11–13, 29–45, 52–56, 140–51; Franklin D. Roosevelt: “Executive Order 9417 Establishing the War Refugee Board,” 22 January 1944. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=16540. See also Bon Tempo, Americans at the Gate, 15–21; Breitman, Richard and Lichtman, Allan J., FDR and the Jews (Cambridge, Mass., 2013), 262–75.CrossRefGoogle Scholar

60. 90 Cong. Rec. 5787 (1944). See also Harvey Strum, “Fort Ontario Refugee Shelter, 1944–1946,” American Jewish History 73, no. 4 (1 June 1984): 398–421. On Holman, see Sachar, Howard M., A History of the Jews in America (New York, 1992), 479.Google Scholar

61. Harry S. Truman, “Statement and Directive by the President on Immigration to the United States of Certain Displaced Persons and Refugees in Europe,” 22 December 1945, Online by Gerhard Peters and John T. Woolley, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=12253.

62. Divine, American Immigration Policy, 113.

63. Ibid., 113–29; Tichenor, Dividing Lines, 181–88; Daniels, Guarding the Golden Door, 104–9.

64. On Senate Resolution 137, see Report No. 1515, 1–2, 803–4; and Ybarra, Washington Gone Crazy, 462.

65. Report No. 1515, 3.

66. Report No. 950, 15–16, 20, 25–27. See also statements by Revercomb in 94th Cong. Rec. 6177, 6180–81 (1948); and Divine, American Immigration Policy, 119–20.

67. “To Permit Certain Displaced Persons under 14 years of Age orphaned as a result of World War II to enter the United States as Non-quota Immigrants,” Stenographic transcript of Hearings before the Subcommittee of the Committee of the Judiciary, U.S. Senate, Friday, 18 July 1947, vol 1, S. 830 (hereafter Displaced Persons Hearings 1947), 6, 16, 35–38, 62, 69. Available at https://0-congressional-proquest-com.libus.csd.mu.edu/legisinsight?id=HRG-1947-SJS-0027&type=HEARING.

68. Divine, American Immigration Policy, 120.

69. See 62 Stat. 1009.

70. Harry S. Truman, “Statement by the President Upon Signing the Displaced Persons Act,” 25 June 1948, Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=12942.

71. Divine, American Immigration Policy, 135–36.

72. Ybarra, Washington Gone Crazy, 463–65. See also Tananbaum, Herbert H. Lehman, 325.

73. Divine, American Immigration Policy, 138–40; Tichenor, Dividing Lines, 188; Ybarra Washington Gone Crazy, 481–83.

74. For overview, see Divine American Immigration Policy, 130–45; Tichenor, Dividing Lines, 185–88; Ybarra, Washington Gone Crazy, 462.

75. Displaced Persons Hearings 1949–50, 17, 47–48, 148, 211, 218, 332–33, 488–89, 758–59, 848, 1067–69, 1141, 1170.

76. Ibid., 505–6, 520, 585–95, 597–98, 709–10, 758–60, 765, 856–60, 980–81, 1018, 1026, 1048, 1170–72, 1201, 1204.

77. Ibid., 317–18, 489–94, 503, 553, 558, 678–80, 881–88, 904–7, 928–31, 983–93, 1020, 1035–36, 1141–42, 1145, 1158–60, 1173–97. On Eastland’s positions during the displaced-persons debate, see also Zwiers, Maarten, Senator James Eastland: Mississippi’s Jim Crow Democrat (Baton Rouge, 2015), 80, 82.Google Scholar

78. Displaced Persons Hearings 1949–50, 293, 687, 712–15, 730, 761–65, 835–38, 1142–43, 1156–57, 1160–64.

79. Ibid., 189–219, 299–333.

80. Ibid., 1123. The primary pushback came from Rosenfield and Celler. See ibid., 195–97, 211–19, 299–334, 1097–1129.

81. Ibid., 1116; “Amending the Displaced Persons Act of 1948,” Senate Report No. 1237, 81st Cong., 2nd sess., 25 January 1950.

82. See statement by Arens in Displaced Persons Hearings 1949–50, 1115–16.

83. Report No. 1515, 455.

84. Ibid., 235–36.

85. Ibid., 241.

86. Ibid., 242. See also Divine, American Immigration Policy, 166.

87. Report No. 1515, 452.

88. Tichenor, Dividing Lines, 187; Hsu, The Good Immigrants, 134.

89. Report No. 1515, 427–28.

90. Ibid., 428; Divine, American Immigration Policy, 140; Ybarra, Washington Gone Crazy, 482–83.

91. Ybarra, Washington Gone Crazy, 463–64, 480.

92. Joint Hearings 1951, 431, 448, 587, 623.

93. Ybarra, Washington Gone Crazy, 480–83.

94. Report No. 1515, 781.

95. Ibid., 413, 798–801; See S. 3455 (1950), Sections 212(a)(27–29).

96. Ibid., 387–88, 781–82.

97. 39 Stat. 874 (1917), sec. 3

98. 42 Stat. 153 (1924), sec. 3, 25

99. “The 1945 International Organization Immunities Act,” 9 December 1945, Section 7, http://avalon.law.yale.edu/20th_century/decad034.asp.

100. See U.S. Congress, Senate, Communist Activities Among Aliens and National Groups, Hearings Before the United States Senate Committee on the Judiciary, Special Subcommittee to Investigate Immigration and Naturalization, 81st Congress, 1st sess., on S. 1832 to amend the Immigration Act of 16 October 1918 as Amended, Part I (10–13 May; 1, 8, 9, 18 June; 15, 16, 27, 28 July; 10–12 August) (hereafter Communist Activities Part I) (Washington, D.C., 1949), 1–2.

101. 95 Cong. Rec. 4993 (1949). Although the bill did not explicitly point to the tenth proviso protections, the loophole was the source of three of the “five distinct problems” the bill was intended to “eliminate.” 95 Cong. Rec. 4993–94 (1949).

102. See Communist Activities, Part I, 2–4. This bill explicitly stated that the tenth proviso protections would no longer apply.

103. For example, see Wasserman, “The Immigration and Nationality Act,” 62–89 (esp. 65).

104. See S. 1832, Section 3(a–b) in Communist Activities, Part I, 2–4.

105. See S. 1832, sec. 3(c) 4(b) in ibid.

106. Communist Activities, Part I; U.S. Congress, Senate, Communist Activities Among Aliens and National Groups, Hearings Before the United States Senate Committee on the Judiciary, Special Subcommittee to Investigate Immigration and Naturalization, 81st Cong., 1st sess., on S. 1832 to amend the Immigration Act of 16 October 1918 as Amended, Part II (7, 8, 9, 13, 14, 15, 28, 29 September) (hereafter Communist Activities Part II) (Washington D.C., 1949).

107. In contrast to the DPA hearings, Arens only briefly explored the issue of Communist subversives gaining access to the United States as refugees (Communist Activities, Part I, 37–38). Similarly, when a witness responded to a question on Communist influence over groups in the United States by referencing “the Jewish group” and “Jewish controlled unions,” Arens followed up with only a hypothetical as to the extent to which foreign born were likely to be leaders of a “foreign language group” (Communist Activities, Part II, 474–75).

108. Communist Activities, Part I, 37, 109–23, 371–84; Communist Activities, Part II, 474–75, 787, 798.

109. Communist Activities, Part I, 329–33.

110. Ibid., 163–77.

111. Ibid., 297–329, especially 306, 309–10, 325–26. On the testimony by State officials, see 171–72, 335–70.

112. Ybarra, Washington Gone Crazy, 466–78. From the standpoint of McCarran and the subcommittee, the tour was necessary to obtain vital information as to the extent of fraud and other challenges posed by refugee access under the DPA. For example, see Classified Incoming Message: Senator McCarran to Department of Army Washington, D.C., for U.S. Senators James O. Eastland et al., 7 October 1949, in Eastland File 4 Subseries 9, Box 3, Folder 5, James O. Eastland Collection, University of Mississippi.

113. Report No. 1515, 781–87, 788–98; Divine, American Immigration Policy, 162.

114. “Subversive Aliens,” CQ Almanac 1950 (Washington, D.C., 1951), 422.

115. Report No. 1515, 797–98.

116. Ibid., 523–24. This language would appear in Section 101 (15) (A) (i–iii), (G) (i–iv) of the omnibus immigration bill.

117. Report No. 1515, 524, 800.

118. Ibid., 524, 800.

119. Ibid., 524, 800. This language would appear in Section 102 (1) of the omnibus immigration bill.

120. Since 1941, U.S. consular and diplomatic officials had been authorized by law to deny issuing visas and other documents to aliens who the official “knows or who has reason to believe” was seeking “to enter the United States for the purpose of engaging in activities which will endanger the public safety of the United States” (55 Stat.252 [1941]). However, the subcommittee did not see this law as applying to tenth proviso aliens. Report No. 1515, 791–93.

121. Report No. 1515, 800–801. The former standard applied to all other tenth proviso aliens. But the “principal resident representatives of foreign government members of international organizations, accredited resident members of their staffs, and members of their families” were exempt from the latter. The “servants, attendees, and personal employees” of foreign government and international organization officials were subject to exclusion on grounds of subversion and any of the other provisions applicable to excludable classes (ibid., 523–24, 800–801).

122. Report No. 1515, 806.

123. Ibid.

124. Ibid. McCarran’s staff would add these same-tenth-proviso revision measures as Section 22 of his internal security bill, S. 4037, in August 1950. But the language of Section 212(e) was not added to the security bill or the final 1952 Internal Security Act. See Divine, American Immigration Policy, 161; Ybarra, Washington Gone Crazy, 485–534, 640; “Note: The Internal Security Act of 1950,” Columbia Law Review 52, no. 5 (1951): 606–60 (esp. 629–34).

125. See 878 F.3d 662 (2017), 687–88; and 585 U.S. 2018, 18–19.

126. Subversive Aliens, 422; Ybarra, Washington Gone Crazy, 493–506.

127. McCarran introduced the revised S. 716 in January 1951, S. 2055 in August 1951, and S. 2550 in January 1952. For a broad overview of this progression, see “Immigration and Nationality Act.” Congressional Quarterly Almanac, 1952 (Washington, D.C., 1953), 154–60.

128. The exception being the Multer amendment debate in the House discussed below.

129. For example, see Joint Hearings 1951, 431, 438, 587, 623; Report No. 1365, 326; and U.S. Congress, Senate, “Minority View,” Revision of Immigration and Nationality Laws, S. 2550, Senate Committee on the Judiciary, Report No. 1137, 29 January 1952 (Washington, D.C., 1952), 4; 98 Cong. Rec. 5090, 5114 (1952).

130. 98 Cong. Rec. 2142 (1952).

131. Ibid., 4423.

132. Ibid.

133. Ibid., 4423, 4425.

134. Ibid., 4423.

135. Ibid.

136. Ibid.

137. Ibid. Two days earlier Walter had responded to Celler’s critique of the broad authority proposed in 212(e) by noting that the authority applied only “when the entry of an alien would be detrimental to the interest of the United States.” When Celler asked for clarification as to “what is meant by ‘detrimental’” Walter did not reply. Ibid., 4304–5.

138. 878 Fd.3 687–88 (2017).

139. In the court’s opinion, when compared to statutory evidence “‘[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.’” 585 U.S. 19 (2018).

140. These provisions would become Sections 212(a)(6), (8) (14) of the 1952 INA. See also Report No. 1515, 337–50, 358–63, 573–86.

141. On issues of disease and economic burdens caused by refugees, see Displaced Persons Hearings 1947, 38, 62; Displaced Persons Hearings 1949–50, 161–63, 456–58, 555, 788; Divine, American Immigration Policy, 120.

142. The implicit reference here, made explicit by Hoffman, was to Truman’s actions against the steel industry in early April that would lead to the Youngstown Steel case before the Supreme Court. 98 Cong. Rec. 4424–25 (1952).

143. Ibid., 4427.

144. Ibid., 5756.

145. Ibid., 5757.

146. Ibid., 5757–58.

147. Ibid., 5757.

148. Ibid.

149. Ibid. In statements later in the day on behalf of his own amendment, Senator Wayne Morse (R-OR) reiterated his opposition to Section 212(e), making no mention that the language had been changed with the McCarran-Humphrey deal. 98 Cong. Rec. 5788 (1952).

150. On recognition by members of the Truman administration that the change was in fact significant, see “Senate Amendments to McCarran Bill,” ca. 1952 Lloyd files (Wrethram Gathright, Legislative Affairs Division, Bureau of the Budget), Immigration Bills, Truman Library, Immigration Policy: President Truman’s Veto of the McCarran-Walter Act, Documents 1952, available at https://www.trumanlibrary.org/whistlestop/study_collections/immigration/documents/index.php?documentdate=1952-00-00&documentid=B50_07-10&pagenumber=1.

151. 98 Cong. Rec. 5758 (1952).

152. Pat McCarran to James O. Eastland, 6 May 1952. Eastland File Series 1, Subseries 18, Box 7, Folder 11. James O. Eastland Collection, Archives and Special Collections, J. D. Williams Library, University of Mississippi.

153. Edwards, Pat McCarran, 171–72; Fite, Gilbert C., Richard B. Russell Jr., Senator from Georgia (Chapel Hill, 1991), 287.Google Scholar

154. Ybarra, Washington Gone Crazy, 639. On the Senate side, McCarran included himself, Eastland, and Herbert R. O’Conner (D-MD), all of whom had served on the immigration subcommittee in drafting the original bill and report. For the list of participants, see 98 Cong. Rec. 6986 (1952).

155. 98 Cong. Rec. 6947–91, 7016–19 (1952).