When Birthright Citizenship was last "Reconsidered": REGAN v. KING and Asian Americans Part III

How did Regan come about? As is well known, during Spring 1942 over 100,000 Japanese Americans living across the Pacific Coast were removed from their homes by the US Army, under authority of Executive Order 9066, and placed in a series of holding areas, the “Assembly Centers,” than shipped inland for confinement in a network of 10 government camps. In the wake of these official actions the Native Sons of the Golden West, a California nativist fraternity that had led the prewar movement for Japanese exclusion, threw themselves into action. In May 1942, their 65^th Grand Parlor (i.e. convention) met at Hoberg’s resort. The keynote speech was delivered by U.S. Webb, who had served as California Attorney General for 36 years. After calling for the full prosecution of the Pacific War, Webb turned t his real motivation for action: “The productivity of the Japanese constitutes a definite threat which must be obviated by a reinterpretation of the constitution or a constitutional amendment.” The convention officially resolved to have the incoming Grand President, Lloyd Congrove, create a committee of five persons to raise money “first to prosecute, then to carry through to the  Supreme Court of the United States, if necessary, a suit challenging the United States citizenship of the Japanese; and second to draft and sponsor an amendment to the Constitution of the United States which shall have for its object the exclusion of all persons of Japanese ancestry from American citizenship."

In addition to the prestige lent the case by the presence of U.S. Webb, the 9-term state Attorney General, the Native Sons’ campaign received important backing from the incumbent Attorney General, future U.S. Chief Justice Earl Warren. According to an account in the OAKLAND TRIBUNE, in his banquet speech at the Native Sons Grand Parlor Warren pledged support: "Warren stated he strongly favored prosecution of the suits now pending in the federal courts to determine if any Japanese can become a citizen and vote. Warren said further action depends upon new interpretation of the law by higher courts which now makes (sic) it possible for Japanese to hold property and vote. Following the judicial determination, other methods will be studied to meet the situation, he said

Warren then served as keynote speaker at the Native Daughters convention in which the resolutions of support were voted.

To be sure, Warren’s endorsement was limited. Unlike Webb, he justified action on the basis of security and not race. Also, he did not approve any constitutional amendment—he called only for “study” of other methods should a test case fail. After the convention, he refused to discuss the matter. A fair conclusion is that Warren, who had announced in April his candidacy for governor (to which he was elected that fall), made a single hedged statement supporting the suit as a necessary profession of faith to retain the political support of the Native Sons, long his chief backers. Still, as the state’s chief law enforcement official, Warren lent quasiofficial status to the lawsuit.

On May 7, 1942 (actually a few days before the start of the convention) John T. Regan, longtime Grand Secretary of the Native Sons, sued Cameron King, as registrar of voters in San Francisco County, to remove 90 named Nisei from the voting rolls for the August 1942 primaries and to deprive them of voting “privileges,” at least for the duration of the war. Although the complaint ostensibly touched only on voting, the publicly avowed purpose of the suit was as an initial step toward overturning the 1898 Supreme Court decision in the Wong Kim Ark and annulling the U.S. citizenship of all Asian Americans on racial grounds. U.S. Webb agreed to act as attorney on the case (as well as a similar lawsuit brought in Oakland brought by the American Legion, and later dropped).

The Regan case was argued in Federal District Court in the last week of June 1942. Japanese Americans, locked in Assembly Centers and barred from the coast, were not able to be present at the hearing, and it does not appear that any Japanese American organizations sent non-Japanese observers. U.S. Webb told Judge Adolphus St. Sure that the case “involves the citizenship and right to citizenship of all peoples and all races who do not fall within the characterization or description of white people.” He then made an argument that rested unabashedly on principles of white supremacy. Pointing to the origins of the nation, Webb insisted that, except where American Indians were involved, the country was settled by “a cosmopolitan population composed of every European people, all of whom were members of…the Caucasian race.” Only white people had fought at Lexington, Bunker Hill, and Valley Forge. He then added that the Declaration of Independence was made entirely “by and for white people,” as was the Constitution.  Walter Dold, Assistant City Attorney of San Francisco, responded that the Supreme Court had established in Wong Kim Ark that all those born in America, irrespective of ancestry, were U.S. citizens.

On July 2, 1942, less than a week after the close of arguments, Judge St. Sure issued his decision in Regan v. King, decisively rejecting the Native Sons’ plea. “It is unnecessary to discuss the arguments of counsel. In my opinion, the law is settled by the decisions of the United States Supreme Court just alluded to.” Webb quickly announced that he would appeal the decision directly to the U.S. Supreme Court, which he believed might reverse its previous decision. Instead, in late September he filed an appeal to the 9^th Circuit Court of Appeals. His brief, submitted just before Christmas, repeated his historical argument that the nation was founded by and for white people only. Using the removal policy as evidence of dangers, he went on to present the case against Nisei citizenship in starkly racist terms: “Because of racial characteristics of the Japanese, assimilation with Caucasians is as impossible as it is undesirable…. The off-spring of Japanese wherever born are taught the Japanese faith and pledged to its observance. Dishonesty, deceit and hypocrisy are racial characteristics [of all Japanese].” 

Comments

[Matt Lister]

In fact such visits are rare, for the very good reason that they are not of immediate benefit to the parents--children can not sponsor their relatives for legal residency before they turn 21

This is an important and often over-looked point. But, there are even more reasons why the so-called "anchor baby" idea is less plausible than fear-mongers would have us think. In the case of "illegal aliens" there are additional bars to adjustment of status that make it very difficult to acquire immigration benefits from family members. In many (probably most) cases, the non-citizen seeking immigration benefits who is not currently "in status" must leave the U.S. and apply from his or her home country. In most such cases there will then be a 10-year bar on re-entry to the U.S. There are sometimes exceptions, but they are not easy to fit into and hard to qualify for. Now, not all, maybe not many immigrants know about this, so it's unclear how much of a direct disincentive it is. But, it does mean that for irregular migrants, immigration benefits via a child born in the U.S. are harder to get than most people think. Additionally, consulate officers can and will reject visa applications of visa applicants they think have "immigrant intent", and if they think a person intends to have a child in the U.S. so as to gain immigration benefits, visas can and will be refused.

[Greg Robinson]

I appreciate this extra information. I had not sought, in a historical article, to examine in detail the merits of the argument that foreigners come to the United States to give birth. It might be useful to point out that such complaints are by no means new. Accusations that Mexican women were pouring across the border to have babies were aired and given credibility by THE NEW YORK TIMES at least as far back as 1982.