As CNN reported the day after the inauguration, President Biden wants to ban the use of the word "alien" and replace it with "noncitizen" in the immigration laws, as part of a massive amnesty bill. Why? I am not privy to legislative strategy in the White House, but I wonder whether the decision to offer the change may be a distraction from that legislation's more technical and significant legislative proposals.
The late C. Northcote Parkinson was a British historian and cynic after my own heart. You may be familiar with his most famous dictum, which has come to be known as "Parkinson's Law": "Work expands to fill the time available for its completion." In other words, the more time you have to do a job, the more time it takes.
That was not his only significant observation on the human condition, however, because he also offered "Parkinson's law of triviality", which describes a human tendency to focus on the trivial in any discussion at the expense of the crucial and complex.
That law is also known as "bikeshedding", because of its genesis:
That term originates from Parkinson's observation of a committee organized to approve plans for a nuclear power plant. As Parkinson noted, the committee devoted a disproportionate amount of time to relatively unimportant details — such as the materials for a bicycle storage shed — which limited the time available to focus on the design of the nuclear plant.
Should dependents of H-1B holders have employment authorization? Should we raise the Diversity Visa Lottery cap from 55,000 to 80,000? Should we legalize millions of "noncitizens"? Those are all proposals that are included in Biden's amnesty plan.
But, although they can have profound effects on all of us, and American workers (both citizens and legal immigrants), in particular, they are complex questions. Better to leave those to members, their staffs, and (as often as not) lobbyists — God forbid we have a national debate among the populace on those proposals.
Change the word "alien" to "noncitizen" in our immigration laws? That is something about which even the most disinterested observer can have an opinion, and as the CNN article shows, the one that has drawn the most attention.
I am not speaking as a disinterested party on this issue — I actually had a 20-minute televised interview in which I had to discuss the change for, well, 20 minutes. I essentially made the same point 10 times, and even that did not satisfy the interviewer.
Biden contends that the change is necessary to "further recognize[] America as a nation of immigrants". Respectfully, that point is self-evident, though it is one into which I was nonetheless drawn in March 2018 myself.
But changing "alien" to "noncitizen" does nothing of the sort, because it defines the "noncitizen" by what he or she is not — a citizen.
On the other hand, Merriam Webster defines "alien" in the immigration context as "relating, belonging, or owing allegiance to another country or government", coming from the Latin "alienus" (foreigner, outsider), by way of Middle English and Anglo French.
That definition more or less tracks sections 101(a)(3) and (22) of the Immigration and Nationality Act (INA). Those sections show why changing the term will lead to a linguistic and legal quagmire.
Section 101(a)(3) of the INA states: "The term 'alien' means any person not a citizen or national of the United States." Section 101(a)(22) explains: "The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."
Wait, you might say, I am a citizen and a national of the United States? And there are nationals who are not citizens? Yes and yes.
I laid all of this out in a June 2017 post captioned "Defining Immigrants, Noncitizens, Aliens, Nonimmigrants, and Nationals: Who's Who in Immigration Law?" I had help from Justice Ruth Bader Ginsburg in her dissent in Miller v. Albright, where she explained:
Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen. [Section 101(a)(22) of the INA]. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island.
With due respect to the late justice, it actually can have an impact on American Samoans, as I laid out in that post.
In any event, however, the term "alien" has been used in U.S. law since the "Act Concerning Aliens" of 1798, and was included in the Immigration Act of 1917, which enacted the following definition:
That the word "alien" wherever used in this Act shall include any person not a native-born or naturalized citizen of the United States; but this definition shall not be held to include Indians of the United States not taxed or citizens of the islands under the jurisdiction of the United States.
As you can tell, the definition of the term "alien" has become more restrictive in the last 103 years, and now excludes native Americans, and residents of Puerto Rico, the Virgin Islands, and Guam.
Thus, under the proposed revisions, residents of American Samoa and Swains Island would still be non-citizens, just not "noncitizens".
Lest you think that this is a purely theoretical dilemma, consider the fact that the memorandum laying out the 100-day moratorium on most removals from the United States (recently analyzed by my colleague Jessica Vaughan) had to include the following explanatory footnote: "'Noncitizen' as used in this memorandum does not include noncitizen nationals of the United States."
That said, in my opinion, "alien" is less objectionable than the proposed "noncitizen", because the former is a long-standing term of art and law describing a status, and the latter, as noted, is a description of what one is not.
More precisely, we tend to think of citizenship as "good" (the Biden proposal calls for a "pathway to citizenship", for example), leading to the conclusion that the alternative noncitizen is "not good" or "not as good".
That is bad, because when I travel abroad, I myself am an alien, but still think of myself as being no better or worse than the local citizenry. I just have fewer rights.
But consider the example of Antigua and Barbuda and the British Virgin Islands, to name two. Citizens in those places are called "Belongers", and when you arrive in the airport in Antigua, at least, they have their own immigration line marked "Belongers". There is nothing like being told that you do not "belong" someplace as soon as you get there.
In short order, the now euphemistic "noncitizen" would likely have an inversely similar, but equally facially derogatory, implication.
As the foregoing shows, however, the "noncitizen" proposal is like Parkinson's bike shed. It distracts from the substantive proposals in the Biden plan, many of which have significant implications for the economy and the rule of law. It consumes much of the national debate, because it is an issue everyone can have an opinion on, and the opinion of each is more or less equally valid.
Perhaps that is the point of its inclusion, as it draws the attention away from whether or not to amnesty 11 million "noncitizens" who are currently illegally present in the United States. That is a big question, like designing a nuclear power plant.
Let's hope it is one that that our elected officials are not distracted from considering soberly, by minutiae and triviality.