A hot current topic of national debate in America is immigration. Most immigrants are here legally, but a sizable minority entered unlawfully or overstayed their visas. Citizens and legal residents have a wide range of opinions about these “illegals”, much of it informed by muddled thinking and conflation of different rationales for supporting or opposing different types of immigration.

It’s not a new issue. A slow-simmering, intermittently volatile migrant crisis has existed for some time, spurred by various economic, political, and humanitarian disasters around the world throughout the 2010s. The pattern is one of periodic spikes in migration, followed by harsh crackdowns—including detention and deportations—by successive U.S. presidential administrations.

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The current situation is also fueled by unique contemporary factors. During the Covid-19 pandemic, the U.S. imposed severe restrictions on immigration and asylum approvals, under a federal statute (Title 42, Section 265) empowering presidents to deny entrance petitions based on concerns about the spread of contagious diseases. This power is not blanket or self-executing. It must be a specifically announced program with detailed justification. But once adopted, it can last indefinitely. The Covid policy effectively suspended the usual rights that the U.S. laws give to asylum seekers and other migrants. Both the Trump and Biden administrations have applied the policy inconsistently. Biden has been criticized for leniency toward Ukrainian refugees but toughness toward Latin Americans. There could be valid reasons for this, but that’s irrelevant to Section 265, which only authorizes restrictions based on the spread of diseases.

Despite being based on Covid-19, the policy continued to be enforced post-pandemic. Meanwhile, south of the United States, Mexico relaxed restrictions at its own southern border, thus removing a longstanding de facto buffer between the United States and some of the most troubled countries of Central America, from which masses of people have been fleeing. This combination of factors built up significant pressures, exacerbated by legal uncertainties following a federal district court decision—and its subsequent temporary reversal by the U.S. Supreme Court—that exclusions under the COVID policy were unlawful and impermissibly “arbitrary and capricious.” A final trigger came on May 11, 2023, when the Biden administration lifted the restrictions, pegging the move to an announcement that the Covid-19 related national emergency was officially over.The immediate aftermath brought in millions of people, including many who applied earlier, and have been waiting in a sort of limbo.

An unusual note in the present debate is that the generally pro-immigration, progressive, “blue” cities are reacting with hostility. New York is a “sanctuary city”, meaning it has a policy of non-prosecution—and non-cooperation with federal prosecution—of illegal immigration. Yet, New Yorkers, including the city’s mayor Eric Adams, a Democrat (the ostensibly pro-immigrant party) and the state’s governor, Kathy Hochul (also a Democrat), have complained bitterly about having to absorb large groups of migrants. It’s easy to dismiss them as hypocrites, and there’s maybe some truth to that. But it is also true that the realities of immigration—and this particular influx—are complex and the overwrought rhetoric from all directions prevents coolheaded consideration of these issues, unfortunately.

Another fascinatingfact—oddly unnoticed by the chattering class—is that Biden (another Democrat), who is being painted as a “soft-on-border-security-liberal-coward”, is actually busy crafting and implementing big anti-immigration measures. Contrary to allegations, he’s not “opening” the border to anyone who wants in.Rather, it’s a controlled ushering in, likely designed to appeal to the pro-immigrant wing of his own party, while keeping tight controls on who enters. The migrants weren’t granted work permits, so unions couldn’t complain about wage competition (though this also meant they had to be supported by public funds, which angered taxpayers, understandably, and eventually this policy was changed, but it’s unclear how successfully). Migrants are kept in hotels, avoiding the cruel image of refugee camps while serving the same purpose, which is to keep refugees from dispersing into the general population. It’s possibly also an easing of already-built-up pressures at the border, before closing the pipeline, like periodic openings of a dam’s floodgates.

In fact, while being both praised and vilified for importing busloads of migrants into American cities and for cutting down wire fencing placed at the border by the state government of Texas, Biden is quietly working on delivering on Trump’s promise to build a border wall, something Trump himself failed to do. By some calculations,Biden’s proposed policies will mean more people being deported or denied entry than under Trump or even Obama, whose excessive deportations earned him the nickname “deporter-in-chief”. Biden has proposed severe immigration restrictions going forward, which were rejected by Republican lawmakers. This all might seem counterintuitive, but the realpolitik here, is that neither party’s actual agenda necessarily tracks the rhetoric used to lure voters.

But WHY is there even a controversy? Isn’t America a “nation of immigrants” where newcomers are welcome? Yes, and no. Since the Republic’s beginnings, there’s been conflict over who is, or can become, American. All the while, at various times, under various conditions of stricture or permissiveness, immigrants have come from the world over, making this country theirs, embracing its ways and its values, but also imprinting a little of their own ways and values on to it. One particularly large influx occurred during the fabled “Ellis Island” phase of U.S. history (roughly 1880s to 1920s). Shiploads of people—mostly Europeans from farther south and east than ever before—poured into New York Harbor, in unprecedented numbers, and were processed through a facility located on a tiny island at the confluence of the Hudson River and Upper New York Bay. Ellis Island stands next to another famous tiny island of New York Harbor: Liberty Island, which houses the Statue of Liberty, a monument gifted by France to the United States, to celebrate its centennial on July 4, 1876, but which has become inextricably linked to immigrants, thanks to the inscription on its base, the1883 poem “The New Colossus” by Emma Lazarus, inviting “the tired, the poor… the huddled masses yearning to breathe free” with open arms and a lifted lamp.

Over time, America has developed parallel traditions, each deeply entrenched, on dealing with immigrants. One tradition venerates immigration as fundamentally American, and sometimes assumes (incorrectly) that near-open borders and a welcoming attitude has been the general norm throughout history. Indeed, there has always been a strand of American philosophical tradition, based on its founding principles of freedom and individualism, that advocates for this kind of openness. But official U.S. policy has rarely reflected anything close to it. The Ellis Island era was succeeded by a long period of severe restrictions until the policy was reformed in 1965.

The other tradition is to doggedly resist each wave of newcomers and characterize them as invasion forces or barbarians at the gate. When anti-immigrant vitriol is confronted with history of one’s own ancestors, it’s generally defended with a ready list of “differences” between earlier waves of immigration and current ones. Some of those differences are imagined, others are real but of dubious relevance.A few are genuine concerns but are only applicable in a few situations, but nobody wants their anti-immigrant policies to be narrowly applied to only the relevant contexts. The usual talking points distinguish between legal and illegal; skilled and unskilled; asylum seekers and “economic migrants”; those who “share our values” and those who “hate us”; and so on, along with generalized fears of drug cartels, criminals, terrorists, downward pressures on wages from increased labor-competition, and an overburdened welfare system. Many of these concerns are contradictory or simply wrong on the facts, though some have just enough of a grain of truth to be exploitable for political purposes.

Incidentally, the post-Ellis Island legal restrictions specifically limited immigration from European countries from which the then-recent newcomers hailed, while immigration from Latin America was untouched, a fact that’s ignored by today’s anti-immigration activists who point to those restrictions as a favorable precedent, while holding up the Ellis Island arrivals as a “different” (and better) class of immigrants than the ones coming from Latin America now.

The author is a lawyer, writer and editor based in Manhattan, New York.