An Essay on Immigration, Citizenship, and U.S./Mexico Relations: The Tale of Two Treaties

The 1990s have been fascinating times for study of U.S./Mexico relations. In the decade's early years, public discussion in the United States centered on the ratification of the North American Free Trade Agreement (NAFTA), a controversial trade accord between the United States, Mexico, and Canada. NAFTA debate in the United States focused on whether this country should enter a trade agreement with Mexico; Canada's inclusion as a trading partner provoked considerably less controversy. Free trade forces ultimately prevailed and Congress approved the agreement. Not long after NAFTA's approval, debate over immigration, particularly undocumented immigration from Mexico, hit a fever pitch in the United States. Tinged by a distinctly anti-Mexican tilt, California's Proposition 187, which swept to a landslide victory in the November 1994 elections, marked the beginning of the restrictionist onslaught. Congress soon after funded monumental efforts to bolster enforcement along the U.S./Mexico border through military-style operations. Like the infamous deportation campaign of 1954 known as Operation "Wetback" in which the United States rounded up and deported Mexican immigrants and U.S. citizens of Mexican ancestry, border enforcement meant tightening migration controls along the nation's southern border with Mexico and increased deportation of Mexican citizens. Tighter enforcement came despite the longstanding charges that U.S. Border Patrol officers all-too-frequently abuse Mexican citizens. At the same time, the federal government stiffened the immigration laws and drastically limited the public benefits available to lawful as well as unlawful immigrants, which disparately impacts Mexican citizens. One might wonder what this modern history has to do with the Treaty of Guadalupe Hidalgo, which in 1848 ended the U.S.-Mexican War. As part of the price for peace and a large piece of Mexican land, that treaty, among other things, purported to protect the rights of Mexican citizens in the territory surrendered to the United States. However, as many, including some of the distinguished panelists in this symposium, have carefully documented, the spirit, if not the letter, of the treaty went unfulfilled. Most fundamentally, many Mexican citizens, transformed by the treaty into U.S. citizens of Mexican descent, and their descendants, never enjoyed full membership rights in U.S. society, despite the treaty's mandate. Though dealing with issues of citizenship, the Treaty of Guadalupe Hidalgo did not address future migration between the United States and Mexico, as the nations were re-configured under the treaty and later the Gadsen Purchase. Thus, the treaty drafters failed to confront a question that ultimately came to dominate the relations between the two nations. This omission is understandable in light of the fact that the U.S. government did not enact the first comprehensive immigration laws until several decades after Mexico and the United States consummated the treaty. Unlike modern times, immigration did not preoccupy the national consciousness. Like its predecessor, NAFTA failed to deal generally with the question of migration. However, unlike the omission of migration from the Treaty of Guadalupe Hidalgo, the modern failure is striking because migration had emerged as one of the most, if not the most, contentious issues in U.S./Mexico relations during the later half of the twentieth century. A high level of migration between the two nations is a simple fact of modern life. Indeed, not long after NAFTA's ratification, Mexico, for the first time in its history, allowed its citizens to become U.S. citizens while maintaining Mexican nationality, thereby legally recognizing -- in a way that NAFTA did not -- the transnational identity of a segment of its populations. Against this backdrop, one might expect the NAFTA partners to at least discuss immigration. From the outset, however, NAFTA "was limited to free trade as opposed to a common market, which would allow for the free flow of all factors of production." In any event, if NAFTA had dealt with immigration, it presumably would have responded to domestic political pressures in the United States and restricted, not liberalized, migration from Mexico to the United States. Suppose, however, that the political climate changed dramatically in a way that "open borders" advocates might endorse. Assume that the United States agreed to permitting labor migration between the two nations while (to be fair) prohibiting the exploitation of Mexican labor. Would the terms of such an agreement be enforceable? Unfortunately, significant evidence suggests that it would not be, at least under present political, economic, and social conditions. Experience with the lax enforcement of the Treaty of Guadalupe Hidalgo and U.S. anti-discrimination laws generally, suggest that undue confidence in the effectiveness of such a compact would not be justified. Economic and social forces shape the rate of legal and illegal immigration to the United States as well as the legal and social status of migrants in the country. Business gains from a low wage labor force provided by migration from Mexico. The public in the United States, however, resists formalizing the immigration status of Mexican immigrants, who are viewed as racially, as well as culturally, different and a threat to their economic well-being. The uncertain legal status of undocumented immigrants renders them all the more susceptible to exploitation in the workplace. It is difficult to see how law, whether through bilateral agreement or otherwise, could substantially change this complex social dynamic. Part I of this essay considers various provisions of the Treaty of Guadalupe Hidalgo and NAFTA implicating citizenship rights. Several provisions of the Treaty of Guadalupe Hidalgo purported to protect Mexican citizens. Though U.S. courts occasionally have enforced the treaty provisions, Mexican citizens never have been afforded full membership rights in the United States. NAFTA, though not squarely addressing immigration, does little to change the dynamics allowing for a significant undocumented Mexican labor force to participate in the U.S. economy with precious few legal rights and protections. Part II considers whether, in light of enforcement and related problems exacerbated by the power differential between the United States and Mexico, it matters what an agreement between the two nations might provide in terms of migration.