On Jan. 1, 1892, Ellis Island officially opened its doors as an immigration station. Officers arrived for duty early, took their stations, and looked out at the three big steamships waiting in the harbor. Agent Charles M. Hendley had already asked for the privilege of registering the first immigrant. Officials apparently choreographed the opening event, handpicking the first immigrant who would be processed and admitted at Ellis Island. “The honor was reserved for a little, rosy-cheeked Irish girl,” the New York Times reported. Annie Moore, an unaccompanied minor who had arrived from Ireland with her two younger brothers, had her name entered as the first immigrant registered in the bureau's registry book. The commissioner of immigration then presented this “little voyager” with a ten-dollar gold coin, made a short speech welcoming her to the United States, and released all three children to join their parents, who had arrived several years earlier and lived in New York City.Footnote ¹

Flash forward to 2018, when the New York Times provided a dramatically different account of contemporary immigration. Under a “zero-tolerance” policy designed to deter families from crossing the U.S.-Mexico border without authorization, the U.S. government began to forcibly separate children from their parents, detaining infants and children in what the Trump administration called “tender age” shelters.Footnote ² In one of these detention centers, twelve-year-old Leticia and her little brother Walter spent their days waking at dawn, making their beds, washing and mopping the bathroom, scrubbing sinks and toilets, lining up for meals, and following a whole litany of restrictive rules. Included on the facility's list of no-no's: “Do not touch another child, even if that child is your hermanito or hermanita—your little brother or sister.”Footnote ³ There were no gold coins or congratulatory remarks or welcoming speeches for these children. Instead, the immigrant experience was defined by trauma—by forced separation and detention; an indescribable aching for parents and isolation from siblings; the constant possibility of deportation; and from September 2018 to May 2019, the deaths of six children while in federal custody: Darlyn Cristabel Cordova-Valle, Jakelin Caal Maquín, Felipe Gomez Alonzo, Juan de Leon Gutiérrez, Wilmer Josué Ramírez Vásquez, and Carlos Hernandez Vásquez.Footnote ⁴

For many observers, the discordance between Annie's and Leticia's experiences are palpable. On the one hand is the supposedly “open-door” era of immigration during the late nineteenth century, most easily invoked by the image of Ellis Island and the twelve million immigrants—mostly European—who passed through its doors. Although Ellis Island officials screened arriving immigrants to ensure they met existing immigration standards, detaining and deporting those who did not, most Europeans spent only a few hours there. Authorities admitted the overwhelming majority of immigrants; they excluded fewer than 3 percent of arriving immigrants from entry.Footnote ⁵

These days, of course, and especially since September 11, 2001, the very concept of an open-door policy or of open borders is a nonstarter. In his September 10, 2018 remarks to forty-four newly assigned immigration judges, Attorney General Jeff Sessions declared that “it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts. No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous. It must be rejected out of hand.”Footnote ⁶ The Trump administration's “zero-tolerance” policy was necessary, Sessions insisted, in order to protect the country from being “overwhelmed” by people seeking to “stampede our border.”Footnote ⁷ That the government is separating families and imprisoning asylum-seekers in violation of U.S. and international laws has hardly seemed to matter.Footnote ⁸ And despite public outcry, the government has continued to expand its federally contracted shelters for migrant children, whose population reached a high of 12,800 by September 2018.Footnote ⁹

Still, while Annie's arrival seems to embody the United States’ celebratory “nation of immigrants” ideal and Leticia's detention seems to reject that very idea, the two are not fundamentally opposed. The stories of Annie and Leticia are in many ways intimately connected, and the two girls share the common bond of having to subject themselves to a federal immigration regime that sought to control their migrations and family reunifications. The federal administration and regulation of immigration may have been significantly weaker in its infancy, during the era commonly referred to as the Gilded Age, but it has grown over the past 145 years, expanding with each national growth spurt into the robust, frequently bullyish system it is today.

This essay, like many of the others in this special issue, resists any simple historical analogy or comparison between the late nineteenth century and our contemporary times. As the editors point out, any such undertaking is riddled with problems, not least of which is the lack of disciplinary consensus about the parameters and content of “the Gilded Age.” The moniker “Second Gilded Age,” meanwhile, suggests parallelism—a sense of return. But in the process of positioning these two periods side by side, the comparative exercise risks collapsing time and process, potentially smoothing out significant differences and rendering the changes and continuities during the years in between—and their ongoing impact and effects—less visible.

In the context of federal immigration law and policy, the differences matter, not so much because they represent departure, but rather the opposite. This essay proceeds less as a straightforward comparative history (whatever that would look like) and instead emphasizes change and continuity. Though there may seem little in recent immigration law and practices that resembles the more welcoming policies of the Gilded Age, the tough administration of immigration law and policy today are in fact a direct outgrowth of powerful doctrines first articulated in late nineteenth-century immigration cases.Footnote ¹⁰ Indeed, as much as times have changed, the fundamental premise of U.S. immigration law—that of the federal government's “plenary power” over immigration, derived from the very notion of national sovereignty—has not. It has remained remarkably resilient for over a century, with claims to national sovereignty experiencing a resurgence lately.

There are, no doubt, many similarities between the immigration-related trends of the Gilded Age and the 1990s–2010s. Most glaring are the immigration rates themselves. In 1890, the number of foreign-born persons in the United States was counted at 9.2 million, amounting to 14.8 percent of the total U.S. population. After a period of steady decline from 1920 to 1970, immigration rates to the United States picked up again dramatically, with the numbers of foreign-born reaching 14.1 million in 1980, 19.8 million in 1990, and 21.1 million in 2000.Footnote ¹¹ The countries of origin have changed—whereas European immigrants comprised the vast majority of Gilded Age immigration, Latin American and Asian immigrants overwhelmingly outnumber recent arrivals from other nations. But the rates of recent immigration more broadly mirror those of the Gilded Age, with the U.S. foreign-born population reaching a high of 44.4 million in 2017, bringing the immigrant share of the population to 13.6 percent, and closing in on the record 14.8 percent share that it had been in 1890.Footnote ¹²

Just like Gilded Age immigrants, these recent immigrants have largely come for economic opportunities, following global circuits of labor migration that have brought millions of both skilled and unskilled laborers into our economy. The economic landscape is different, of course: whereas millions of immigrants in the nineteenth century came to work on railroads and in mines and factories, many of today's immigrants are coming as H-1B visa holders, reserved for foreign nationals in highly skilled specialty occupations such as engineering, computer science, and medicine.Footnote ¹³ But just as Gilded Age industrialists desired immigrants for their “cheap labor,” Silicon Valley firms today have been criticized for their own capitalist exploitation of highly skilled foreign nationals, who are paid lower wages, promoted more slowly, and effectively kept immobile by the employers who sponsor their work visas (and potentially their applications for permanent residency).Footnote ¹⁴ Our neoliberal era of extreme wealth inequality also depends on the backbreaking “cheap” labor of millions of “unskilled” immigrants working as farmhands, busboys, housekeepers, and taxi drivers.

Perhaps the most powerful point of comparison, though, are the anti-immigrant and nativist movements that each era generated. Fusing economic anxieties in the American West with racist attitudes against the Chinese, white laborers worked with politicians to pass the Chinese Exclusion Act of 1882, the country's first restrictive federal immigration law based on race and national origin.Footnote ¹⁵ The passage of additional federal immigration laws designed to screen and exclude “undesirable” immigrants, however, did little to tame the increasing ethnoracial anxieties about the southern and eastern European immigrants who were arriving in greater numbers by the turn of the century. While Congress never passed an Italian, Polish, or Russian Exclusion Act, American eugenicists and nativists railed against their immigration, warning about the racial undesirability and threat that these immigrants posed to the American body politic, and linking their immigration to the radical labor activism and political ideologies that threatened the American capitalist order.Footnote ¹⁶ As legal scholar Peter Schuck succinctly explained, “[c]lassical immigration law was launched upon this tide of hostility to strangers.”Footnote ¹⁷

Such anti-immigrant sentiment finds its modern-day correlation in criticism against Mexican immigration. Anti-Mexican sentiment has a long genealogy, and gained increasing traction in U.S. immigration law and policy over the course of the twentieth century, but California's Proposition 187 (1994)—which sought to deny undocumented immigrants access to the state's social programs, such as public schools, health care, and other basic services—amplified the battle over Mexican immigration.Footnote ¹⁸ Though it never took effect, other states followed suit, attempting to pass even more stringent versions of California's anti-immigrant laws. Arizona jump-started the legislative movement again in 2010 with SB 1070, requiring, among other things, that police demand “papers” of persons that they thought might be in the country unlawfully. By 2011, anti-immigrant measures enjoyed high levels of support in states seen as magnets for Mexican immigration; Alabama, Georgia, Indiana, South Carolina, and Utah quickly followed Arizona's lead and passed draconian anti-immigrant and “show-me-papers”–style laws of their own.Footnote ¹⁹

At the same time, the federal government has progressively rolled out legislation to expand its control over immigration and the southern border. Since the 1980s, but especially starting with “Operation Hold the Line” in 1993 and “Operation Gatekeeper” in 1994, the government has been relentless in its attempt to stall immigration across the U.S.-Mexico border. While there was only one immigration inspector stationed in El Paso, Texas, for the entire border in 1893, there were nearly 4,000 Border Patrol agents at the southern border in 1995, almost 8,000 in 2000, and over 18,000 by 2011.Footnote ²⁰ According to the American Immigration Council, the federal government has spent an estimated $324 billion on border security and immigration enforcement since the creation of the Department of Homeland Security in 2003.Footnote ²¹ Between 1994 and 2005, the United States built walls around major urban areas along the U.S.-Mexico border, tripled the number of border agents, and dramatically increased funding for more high-tech equipment to deter unlawful entries. Instead of an end to unauthorized border crossings, though, the government's strategy of “Prevention through Deterrence” shifted the routes of illegal entry out into the remote deserts of eastern California, Arizona, New Mexico, and Texas, relying on the rugged, desolate, and dangerous terrain to produce a policy of violence and migrant deaths. The southern border has become a “land of open graves,” as anthropologist Jason De León puts it, where the bodies of 2,721 border crossers were recovered in southern Arizona alone between October 2000 and September 2014.Footnote ²² Meanwhile, federal legislation such as the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) further strengthened the policing of undocumented immigrants, and significantly increased the government's use of detention and deportation. Even during the more liberal years of the Obama administration, the nation fortified its borders in new and ever more powerful ways; whereas in 1893 the government had removed 1,630 noncitizens, in 2013 that number reached a record 435,498.Footnote ²³ Add the ever-increasing number of noncitizens in immigrant detention—from 85,730 in 1995 to 477,523 adults in 2012—in no small part due to the increasingly labyrinthine amalgamation of criminal and immigration law, and it is clear that the federal immigration regime has grown to proportions unimaginable during the Gilded Age.Footnote ²⁴

The federal consolidation and fortification of border and immigration control, then, marks a striking contrast to the nineteenth century, when the United States steadily expanded westward to the Pacific coast and beyond. The history of the border began, as Rachel St. John puts it, with a “collective act of imagination.”Footnote ²⁵ With the Gadsden Purchase of 1853, the borders of the contiguous United States were finally drawn, and yet the border continued largely unmarked and unguarded well into the twentieth century. And although the federal government ambitiously sought to transform the American West, it suffered from a chronic administrative weakness: “[i]n 1867 American achievements in the West still consisted largely of bold talk,” as Richard White explains.Footnote ²⁶ Indeed, as historians are recognizing more and more, the American ideology of “Manifest Destiny” has overdetermined much of the writing and understanding of American history; much of U.S. history, in other words, has been written as if western expansion was natural and inevitable. But as other western and borderlands historians are showing, the American “conquest” of the West was not so inevitable; white settlers from the American East had to contend with a variety of powerful challenges and competing territorial claims, not only from European states and Mexico, but also from Mormons and indigenous nations most of all.Footnote ²⁷

Well into the 1870s and 1880s, moreover, “power” in the West still appeared to be very much up for grabs, generating a wealth of anxiety on the part of white settlers and Americans back East. Not only were Mormons defiantly clinging to their polygamous institutions, they were growing and expanding, recruiting new members from Europe and establishing additional outposts in neighboring states and territories throughout the West.Footnote ²⁸ Native peoples, meanwhile, continued their powerful resistance to the government's continued warfare and “benevolent” Americanization programs. Chiricahua Apache Indians led by Geronimo and Chief Naiche continued to evade U.S. and Mexican forces at the U.S.-Mexico border, and then promises of rain and tribal resurrection by a Paiute Indian in Nevada named Wovoka began to gain messianic proportions, spreading across the West as indigenous followers embraced the Ghost Dance.Footnote ²⁹

In addition, the arrival and economic success of Chinese immigrants in California and the Pacific Northwest generated new concerns and debates about who actually deserved to control and possess the West. As Supreme Court Justice Stephen J. Field wrote in 1889, the Chinese in the West had “remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people.”Footnote ³⁰ The danger was not simply framed as an issue of racial or cultural assimilability, but also as a territorial, almost imperial threat. Field continued:

Viewing Chinese immigration into the U.S. West as “approaching the character of an Oriental invasion,” and threatened by what some Americans saw as an independent “Chinese settlement within the State [of California],” white settlers demanded protective legislation from the federal government.Footnote ³² Congress obliged, responding to white settler concerns with the Chinese Exclusion Act of 1882, followed thereafter by a series of new legislation that expanded the scope and longevity of the exclusion policy.Footnote ³³ While the “open-door” policy of the Gilded Age may have been true for Europeans, then, it never really was so for the Chinese.

As Erika Lee has pointed out, the Chinese Exclusion Acts established the modern administrative apparatus for immigration law and the transformation of the United States into a gatekeeping nation.Footnote ³⁴ In addition, however, the cases brought in opposition to the Chinese Exclusion Acts also laid the legal groundwork for Congress's ever-expanding regulations and restrictions on immigration.Footnote ³⁵ In Chae Chan Ping v. United States (1889), the Supreme Court affirmed the power of the federal government to pass laws restricting immigration, even on the basis of race and national origin. As the Court put it, “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.”Footnote ³⁶ Reaffirming American anxieties about western expansion and the U.S.'s tentative hold in the far West, the Supreme Court held that Congress's power over immigration and the nation's borders was especially justified when the nation's security was being threatened by “foreign aggression and encroachment,” whether it came in the form of military aggression by a foreign nation-state, or from “vast hordes of [foreigners] crowding in upon us.”Footnote ³⁷ Equating immigration to a foreign act of war, the Court pronounced what has since been called the federal government's plenary power to set immigration policy as it saw fit, with minimal judicial oversight.Footnote ³⁸

Importantly, the doctrine of plenary power in immigration law did not develop in isolation. In actuality, multiple doctrines of plenary power developed in the Gilded Age and Progressive Era to legally institutionalize U.S. claims of sovereignty and dominion over its ever-expanding territory. More specifically, it is no accident that the Supreme Court's decision in Chae Chan Ping came only three years after United States v. Kagama (1886), in which the Court addressed the source of federal authority over Indian affairs for the first time.Footnote ³⁹ When Kagama, a member of the Hoopa Valley Reservation in Humboldt County, California, challenged Congress's authority to legislate criminal codes for Native tribes, a unanimous Supreme Court upheld the constitutionality of the law, based on the notion that Congress possessed inherent sovereign power and authority over Indian affairs. In a sweeping assertion, the Court explained,

This would, of course, provide the legal foundation for Congress to continue passing legislation—including the devastating Dawes Act in 1887—that would strip Native Americans of much of their tribal control and their lands.

In both Kagama and Chae Chan Ping, the Court upheld Congress's power over Indians and immigrants as inherent in sovereignty, and thus absolute. Congress's power over U.S. territory and its jurisdictional borders, therefore, remained virtually unchecked, enabling Congress to both exclude the Chinese at the nation's borders and turn Native Americans into “internal foreigners” exiled from their own lands.Footnote ⁴¹ Though much of the scholarship—both historical and legal—tends to treat these two cases in isolation, compartmentalized into their own disparate fields (Native American and immigration studies), bringing these two cases together clearly animates the ways in which concerns over jurisdictional control and sovereignty, the boundaries around citizenship, and the creation of racialized “others” defined the American West during the Gilded Age.Footnote ⁴² It becomes clearer, in other words, how the plenary power doctrine over Native Americans—exercising the power to regulate who would be politically segregated and removed from within the country—laid the groundwork for the plenary power doctrine over immigration—exercising the power to regulate who could be admitted into the country at its borders. As the United States continued to expand across its borders and acquire new territories following the Spanish-American War of 1898, the next iteration of the plenary power doctrine would be articulated in the Insular Cases, a series of Supreme Court cases starting in 1901 that dealt with the political status of U.S. territories, such as Puerto Rico and the Philippines, and their inhabitants. The plenary power doctrine, in other words, would extend the federal government's power to regulate who could be admitted into the country even beyond its immediate borders. The doctrines of plenary power ultimately developed in tandem, coalescing into one larger system designed to regulate migration and control populations during an era of constantly shifting borders.

The border today is substantially different. The United States as a whole is not weathering the same kinds of territorial anxieties or expansionist dilemmas, and our borders do not seem to be moving about so fluidly anymore.Footnote ⁴³ If anything, since the 1990s there has been a hardening and thickening of the border when it comes to immigration, accompanied more recently perhaps by a kind of shrinking as the Trump administration retreats from globalism while attempting to pressure Mexico to serve as a “buffer” country and stop Central Americans from reaching U.S. soil.Footnote ⁴⁴

Still, it would be a mistake to frame the thicker, more immobile borders and enormous apparatus of federal immigration law today as a break from the past, just as it would be a mistake to characterize the post-1965 immigration trends as Gilded Age 2.0. Rather, the powerful immigration regime that we have today is an inheritance from our Gilded Age ancestors—an extension of powerful underlying principles that were developed during the Gilded Age and almost immediately became the backbone of modern immigration law. The bases and categories for admission or exclusion have changed over time, expanding and contracting over the past 145 years of federal immigration law in response to shifting political, social, and economic demands. But the fundamental legal belief that Congress has broad and nearly exclusive authority to determine all matters related to immigration and its borders has experienced remarkably little challenge since its articulation in Chae Chan Ping in 1889.Footnote ⁴⁵

Indeed, as Lucy Salyer has explained, the plenary power doctrine effectively freed immigration law “from constitutional moorings … [and] expanded over the years to bolster the absolute power of the federal government to control immigration and to diminish the rights of aliens and the participation of courts in immigration decisions.”Footnote ⁴⁶ These principles have remained fairly constant since the Gilded Age, if anything hardening such that the very idea that the government has the power to exclude and deport has become unquestionable. As immigration law scholar Stephen Legomsky has explained, “In an undeviating line of cases spanning almost one hundred years, the Court [declared] itself powerless to review even those immigration provisions that explicitly classify on such disfavored bases as race, gender, and legitimacy.”Footnote ⁴⁷ In 1950, the Supreme Court declared that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” and the Court has since repeatedly affirmed the position that “[o]ver no conceivable subject is the legislative power of Congress more complete.”Footnote ⁴⁸ Each reaffirmation of the plenary power doctrine in immigration law acts as a joint, connecting these cases into a comprehensive whole and allowing the federal government to stretch its power over immigrants and the border in any new direction it claims necessary.

In recent years, the power has been most vigorously exercised by the executive branch. As legal scholars have noted, the plenary power doctrine raised its “ghostly” head again with the Trump administration's latest travel ban against immigrants from selected majority-Muslim countries.Footnote ⁴⁹ In Trump v. Hawaii (2018), the majority of the justices rejected the idea that the entry ban was tainted by religious animus, despite Trump's repeated attacks on and denigrations of Muslims. Relying implicitly on the plenary power doctrine, the majority affirmed that “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government's political departments [and] largely immune from judicial control.’”Footnote ⁵⁰ Insisting on a tightly constrained form of judicial review, and finding that the entry ban policy was “expressly premised” on legitimate national security purposes (i.e., “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices”), the Court upheld the executive branch's increasingly aggressive exercise of authority over immigration. As Justice Jackson recognized in 1952, judicial power can be most weakened and the president's authority at “its maximum” because the presidency “[can] be said (for what it may be worth) to personify the federal sovereignty.”Footnote ⁵¹ Invoking the president's near plenary authority over immigration, the Supreme Court effectively gave the administration free rein over immigration, even turning a deaf ear to religious animus and racism.

Critics have long called for a serious reconsideration of the plenary power doctrine, pointing out a variety of ways in which the doctrine uniquely isolates immigration law from mainstream public law norms.Footnote ⁵² Attention to the historical context in which the plenary power doctrine was born has generated increased skepticism about its reliability. The Chinese exclusion cases, of course, were decided by Americans who lived in a very different racial and legal landscape. Following the lead of immigration law professor Gabriel Jack Chin, critics of the plenary power doctrine in immigration law have pointed to its historical origins, rooting Chae Chan Ping in the same Supreme Court that decided Plessy v. Ferguson (1896) and paved the way for decades of Jim Crow segregation and violence in the United States. Identifying Chae Chan Ping as a product of an outdated xenophobic and racist era—of an “antique period of American law,” as Chin puts it, that was replaced by Brown v. Board of Education (1954) and a new constitutional “presumption against racial discrimination”—immigration scholars urge a reconsideration of the ongoing relevance and legitimacy of its plenary power doctrine.Footnote ⁵³

However, the other related historical context in which plenary power was born—that of Gilded Age U.S. territorial conquest and American empire—may explain why the plenary power doctrine persists and is unlikely to go away any time soon. When Attorney General Sessions insists that “[p]eople around the world have no right to demand entry in violation of our sovereignty,” and Donald Trump lectures United Nation members of each nation's responsibility to “defend against threats to sovereignty,” they echo much of the Supreme Court's often-quoted language from Nishimura Ekiu v. United States (1892) that “every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”Footnote ⁵⁴

American sovereignty talk remains alive and well. As long as Americans continue to define national sovereignty by the metrics of territorial control and the logic of border policing, the power of the federal government to regulate immigration in the interest of national security—to protect the nation from immigrants who supposedly threaten to “overwhelm” or “stampede” our borders—will go unquestioned. In the meantime, the federal government can continue to dramatically restrict and reshape immigration to meet the demands of nativists and white nationalists.Footnote ⁵⁵ It can implement bans against immigration from majority-Muslim nations; end programs that protected hundreds of thousands of black and brown immigrants from Haiti, El Salvador, Honduras, and African nations; expel thousands of Vietnamese refugees—including children fathered by U.S. servicemen, but who never acquired U.S. citizenship—despite a bilateral agreement that should protect most from deportation; and propose new rules that deny green cards to immigrants who have used public benefits or are deemed “likely to become a public charge,” potentially affecting Asian and Hispanic immigrants most severely.Footnote ⁵⁶

Moreover, while a federal court has drawn a line at the separation of children from their parents, the alternative of whole families facing detention together has not produced the same criticism. Indeed, when the federal district court in California issued its order in June 2018 barring future separations for families in Department of Homeland Security custody, the Department of Justice used that order as justification to move forward with plans “to detain families together during the pendency of immigration proceedings.”Footnote ⁵⁷ To house more than 13,000 men, women, and children indefinitely—for months or even years—the federal government began working during the summer of 2018 to expand family detention facilities.Footnote ⁵⁸ Allegedly justified by the DOJ as “essential to protecting our southwest border,” the privatization of immigration detention raises urgent concerns about the real motivations behind indefinite detention. As of August 2018, only three facilities nationwide were authorized to detain immigrant families together; the two largest centers are run in Texas by private prison corporations GEO Group Inc. and CoreCivic Inc.Footnote ⁵⁹ Having won several new federal contracts in recent months for the building of additional private detention facilities in Texas, CoreCivic's federal contracts have reportedly “exploded by more than 900 percent.”Footnote ⁶⁰ Shares in both companies rose after U.S. Immigration and Customs Enforcement issued a notice that it would need to house a larger number of family units.Footnote ⁶¹ But perhaps the largest threat to immigrants is in the private industry's fee structure: charging a daily rate per person incarcerated (approximately $126 per day for each detained noncitizen in fiscal year 2017), industry profits soar even higher by keeping beds occupied and thus detaining immigrants as long as possible.Footnote ⁶²

This is the devastating and twisted legacy of the Gilded Age immigration regime. Our borders cannot wholly keep noncitizens out, but it can lock noncitizens up. The “nation of immigrants” and American Dream ideas that helped to define Gilded Age American exceptionalism—however mythical and inaccurate those ideas are—continue to resonate around the world, still drawing thousands of men, women, and children who seek to find new opportunities here. And the United States continues to desire their immigration. But rather than valuing immigrants for their labor, as Americans did during the Gilded Age, the United States today profits from their indefinite detention. The United States at the turn of the twenty-first century, in other words, has not shed the weight of its imperialist past. Rather, we appear to have a new kind of colonial subject: modern-day noncitizens who are trapped within U.S. territory, held without their consent indefinitely, and denied access to the protections and guarantees of the Constitution. These are the reverberations of Gilded Age “sovereignty talk” today.