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“Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe
Leff, Laurel
Leff, Laurel
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Abstract
During the Nazi era, the United States could have remained within
overall and country-by-country quotas limiting immigration and still have
admitted an additional 350,000 refugees from Germany and Germanoccupied
or -allied countries. Instead, the State Department, whose
consular officers abroad decided whether visas were to be issued, denied
them to hundreds of thousands seeking refuge between 1933 and 1945.
Largely untethered by judicial or public oversight, consular officials
deployed their discretion in a way that produced direct and often deadly
consequences for the mostly Jewish refugees. This episode has been largely
overlooked in histories of administrative or immigration law, and
minimized in historical accounts focused upon congressional intransigence
and presidential acquiescence in failing to change the statutory scheme. Its
meaning has been lost in the gap between disciplines. This article seeks to
bridge the divide by showing how State Department officials used the
discretion afforded them under the immigration statute and through judicial
decisions to implement an anti-foreign, antisemitic policy. Understanding
the multiplicity of decisions officials faced gives lie to the oft-repeated
refrain that the law in the form of an impenetrable statute dictated the
result. Reviewing the history also demonstrates the power of the “law made
me do it” claim, as it persists decade after decade, despite overwhelming
evidence that “the law” did no such thing. This tragic case study ultimately
illuminates the need for historians to develop a better understanding of law,
and for legal scholars to gain a better understanding of history.