Last week the Trump administration announced its plans for refugee admissions for fiscal 2021, setting a ceiling for admissions at 15,000. This was by far the lowest total in U.S. history, though it fell comfortably in line with the administration’s prior ceilings in 2020 (18,000) and 2019 (30,000).
Human rights and refugee advocates have responded with great alarm — and understandably so. According to the United Nations, the global population of forcibly displaced individuals reached a record 79.5 million in 2019. The Trump administration, however, appears more hostile than ever to refugee admissions. Indeed, the president spent recent days warning Americans “Biden will turn Minnesota into a refugee camp … overwhelming public resources, overcrowding schools and inundating hospitals” while his campaign ran Facebook advertisements that baselessly linked refugees to the spread of covid-19.
In setting annual refugee admissions, the Trump administration is administering a 40-year-old law: the Refugee Act of 1980. Since its inception, that law has been a vital, lifesaving avenue for refugees to enter the United States. But it also was the product of a particular set of historical circumstances. In exploring that moment, even as President Trump hastens the demise of this system, a move that will harm many thousands of people, we can see the framework itself may have outlived its usefulness. It has also proved to be totally inadequate to the needs of our present moment.
The U.S. commitment to refugees emerged in the late 1940s. Humanitarian rationales, Cold War foreign policy concerns and pressure from religious and ethnic groups led American leaders to establish admissions programs. These ad hoc responses to what American leaders saw as refugee crises brought hundreds of thousands of European refugees to the United States between 1948 and 1960. Importantly, the public perceived these newcomers as victims of communism and deserving of help. Cuban refugees in the 1960s fit this model, too. Escaping Fidel Castro’s communist regime, they too were mostly of European descent.
With Hungarian and Cuban refugee admissions, presidents utilized novel powers. President Dwight Eisenhower ordered the “parole” of the Hungarians into the United States, an obscure part of immigration law that permitted the attorney general to admit to the country an individual deemed vital to national security. President John F. Kennedy followed the same procedure with hundreds of thousands of Cubans. Decisions about refugee admissions came to rest in the executive branch, and especially the White House, rather than with Congress.
Lawmakers tried to bring some order to refugee policy in 1965, providing a carve-out in that year’s landmark immigration law revisions for about 10,000 refugee admissions per year. But this maneuver soon proved insufficient. The Vietnamese and Indochinese refugee problems of the 1970s, an outcome of the American war, could not be solved with such small annual admissions, forcing American leaders to resort to the parole power. During these years, U.S. refugee policies still centered on the admission of victims of communism — but the world’s growing refugee populations often did not meet that test.
By the late 1970s, most policymakers, U.S. politicians and refugee experts — from across the partisan divide and the ideological spectrum — saw the need for significant reform. Foremost, refugee advocates wanted a larger guaranteed annual admissions number than 10,000. This desire made them comfortable with designing a separate refugee admissions program, one distinct from the laws that governed the admissions of other immigrants to the United States.
Just as important, American liberals such as Sen. Ted Kennedy saw an opportunity to move refugee admissions away from their focus on aiding the victims of communism. Thus, they pushed for a more nonideological definition of refugee, one based on the U.N. understanding of the term. President Jimmy Carter, along with Kennedy, supported this new definition as well because the creation of a more universal definition of refugee harmonized with his belief in universal human rights.
Skeptics of refugee admissions also saw much to like in reform. They had grown frustrated in the late 1970s by the annual parole of hundreds of thousands of refugees as the crises of the era swelled to unimaginable proportions, best exhibited by the plight of the so-called boat people, desperate refugees who fled Laos, Cambodia and Vietnam on unseaworthy crafts.
They also expressed frustration with the exercise of executive parole power, viewing it as a questionable workaround immigration law. On this front, they were correct: Parole was designed for individual cases, not for tens or hundreds of thousands of refugees. If the United States had healthy annual admissions, they reasoned, it would obviate the need for parole. An annual quota, even at 50,000, would reduce the number of refugees admitted each year compared to the seemingly regular parole of hundreds of thousands.
Finally, members of Congress from all persuasions wanted more say in refugee admissions. The reform agenda promised to bring Congress more into the refugee policymaking orbit. This was but another step, like the War Powers Act, in Congress reasserting its power as a coequal branch of government, in recognition of the pitfalls of a too-powerful executive.
These policy concerns and motivations birthed the Refugee Act of 1980. The law provided for, at most, 50,000 refugee admissions annually. It directed that the president consult with Congress each year about admissions, though the president retained final say. In that consultation, the president could explain why the 50,000-ceiling needed lifting. The law established a new definition of refugee, one more in line with the U.N. version, that defined a refugee as a victim of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion” who cannot return home.
In some ways, the Refugee Act of 1980 worked as intended. By the State Department’s count, over 3 million refugees have gained admission to the United States since 1980 under this law. Presidents regularly ordered the admission of more than 50,000 refugees. Large numbers of non-White refugees, especially from Africa, the Middle East and southeast Asia, were among those millions. Under the law the United States accepted more than Cold War refugees fleeing communism.
Yet, in the face of huge refugee populations, American leaders continued to use the parole power in the early 1980s. This signaled, too, that congressional oversight was less muscular than participants in 1980′s debate had hoped. More troubling, despite the nonideological definition of refugee on the books, the Reagan administration flaunted its intention by prioritizing the admission of those fleeing communism. It often defended its decisions by claiming refugees from communism were fleeing actual political persecution, while those fleeing other forms of persecution were in fact economic migrants, i.e. not real refugees.
In this last issue lay the root of the chief contemporary fault in the Refugee Act: the arbitrary dividing line between refugee and immigrant. The Reagan team made this distinction in the 1980s, and the Trump administration does so today. In both cases refugee advocates have pushed back, demanding the government more liberally enforce the law to accept those fleeing different and varied forms of violence and persecution.
The decision to split refugee admissions into its own category — with its own law — made sense in 1980 given the circumstances American leaders and policymakers faced. But, our world regularly erases the lines between refugee and immigrant. The types of oppression — political, economic, racial, gendered and social — overlap and reinforce each other in terrible ways. The mother living through a war between competing drug cartels, under a corrupt and extortionate police force and with bleak economic prospects surely must flee for her and her children’s safety; she must seek refuge. Yet, she often does not fit the tight definition of refugee designed in 1980 and struggles to enter the United States. Perhaps, as the Trump administration strangles this version of American refugee policy, then, it is time to revisit the work of 1980 and design a system for our times.