Imperialist Immigration Reform

For decades, one of the most challenging domestic policy matters has been immigration reform. Dogged by controversial notions of what makes for a “desirable” immigrant and debates about enforcement and amnesty, elected officials have largely given up on achieving comprehensive, bipartisan immigration solutions. The lack of federal action has led to an outdated and impractical legal framework, with state and local lawmakers unable to step into the breach. Well over 100 years ago, the U.S. Supreme Court firmly stated that regulation of the U.S. immigration system is within the sole constitutional authority of the federal government.

Yet there is one place within the United States that has embraced an alternative. Though it has been under the control of the federal government for nearly eighty years, the Commonwealth of the Northern Mariana Islands (CNMI) remains exempt from federal immigration law. As a territory of the United States, the CNMI has controlled its own system of immigration with little federal interference. At the time of this writing, Congress has approved a transition period further delaying the application of federal immigration law in the CNMI until 2029.

This extension was made possible through bipartisan legislation signed into law by President Donald J. Trump in 2018. Not only did President Trump sign legislation giving continued federal employment authorization to the CNMI’s otherwise undocumented workers, but, in 2019, President Trump also approved a bill to give permanent resident status to over 1,000 individuals facing deportation from the CNMI. Both actions fly in the face of President Trump’s domestic immigration policy. This Essay argues that this imperialist immigration reform reveals as much about immigration policy in the CNMI as it does about what is not happening in the rest of the United States.

Numerous scholars have pointed to the racist roots of U.S. immigration policy typified by the 1882 Chinese Exclusion Act. I suggest that the parallel system of immigration in the CNMI is the exception that proves the rule of racism in U.S. immigration law. The population of the CNMI is overwhelmingly Asian and Pacific Islander, with a white population making up less than 2 percent of the total. By looking at demographics, history, and constitutional law, including the law governing U.S. territories in the Insular Cases, I argue that the immigration policy of the CNMI demonstrates the federal government’s alternative approach when protection of “white spaces” is taken out of the legislative equation.