It is a sad reality that the legal doctrine placing broad (or "Plenary") power over immigration in the hands of the "political branches" of the federal government, with minimal supervision by the courts, originated in one of the worst periods of prejudice against foreign citizens based on race. I refer to the era of the Chinese exclusion laws in the late 19th and early 20th centuries.

While it would be unthinkable today to base immigration laws overtly on race (such as, for a hypothetical example: "No person of Amazonian Indian descent shall be admitted to the United States"), it was only as recently as 1965, less than 50 years ago, that the "national origins" quotas in the Immigration Act of 1924, which placed tight restrictions on immigration from countries outside of Northern Europe (unless they were in the "Western Hemisphere"), were abolished.

Even as recently as 2013, in S.744, which was, admittedly with considerable justification, regarded as an immigration "reform" bill, a provision was inserted which would have abolished the Diversity Visa program ("Green Card lottery". This was an obvious attempt to reduce immigration from Africa, which is major beneficiary of this program.

This is not the place to go into a detailed discussion of the shameful history of the Chinese exclusion laws. It is sufficient to note that their purpose was to make it as difficult as possible for persons of Chinese descent to enter the US, and as easy as possible to expel those who were already in this country with as little legal protection as possible.

One of the most famous Supreme Court cases of that period, which is still frequently cited as a basis for upholding broad Congressional/Executive power over immigration, is Fong Yue Ting v. United States 149 U.S. 698 (1893).

In that case, all Chinese living in the US were required by statute to obtain a "certificate of residence" (arguably a predecessor of today's green card), from an immigration official, based on proof that they had actually resided in the US for a certain required period of time.

Congress had set no standards or procedures for obtaining this certificate, and everything was left to the executive branch to decide (in anticipation of today's broad executive power over immigration). Anyone who failed to apply for or was unable to obtain such a certificate, which could be denied for any reason, was subject to summary deportation unless he or she, in a proceeding before a judge, could: a) show that failure to obtain the certificate was due to accident, sickness or some other unavoidable cause and, b) produce least one white witness to attest to the person's having resided in the US.

The US Supreme Court held that there was nothing in the Constitution to invalidate this law: The majority opinion went so far as to state:

"Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country."


It is noteworthy, however, that this blatant assertion of quasi-dictatorial power over immigration on the part members of an unpopular minority (or what Virgil refers to, in the case of the ancient Trojans, as a genus invisum) did not go unchallenged by other Justices in that case.

In his dissenting opinion, Justice Field compared the assertion of unlimited power to expel Chinese living in the US with the persecution of Jews which was then taking place in Russia. He stated:

"Within three years Russia has banished many thousands of Jews and apparently intends the expulsion of the whole race - an act of barbarity which has aroused the indignation of all Christendom."

Unfortunately, he could not have known at that time that far worse was to take place in the century to come.

But, earlier in his same dissent, Justice Field was eerily prescient in anticipating the dilemma facing more than 50,000 border children today:

"The existence of the power this stated [in the first quoted passage above] is only consistent with the admission that the government is one of unlimited and despotic power so far as aliens domiciled in the country are concerned. According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean and put them into a boat and set them adrift
, or to take them to the borders of Mexico and turn them loose there; and in both cases without any means of support; indeed, it might have sanctioned toward these laborers the most shocking brutality conceivable. I utterly repudiate such notions, and reply that brutality, inhumanity and cruelty cannot be made elements in any procedure for enforcement of the laws of the United States." (Bold added.)

It is easy to understand why anti-immigrant groups such as the Center for Immigration Studies (CIS) are so fond of quoting this and other Chinese exclusion law cases as a basis for arguing in favor of mass deportation of unwanted immigrants without due process of law, as mentioned in my previous post.

But is it not time to revisit these old Supreme Court cases, which are no more relevant to than 21st century American values of racial justice and equality than was the now long since overruled decision in Plessy v. Ferguson (1896) which upheld racial segregation in the schools?

However, as long as these decisions are still the law, there is nothing in them inconsistent with the idea of using broad executive power over immigration to allow immigrants to stay in this country instead of throwing them out.

In the meantime, the above quote from Justice Field's dissent of 121 years ago should be posted in the ICE border children's detention facility at Artesia, New Mexico, and every other immigration facility and courtroom in America.

It should also be posted in the White House and the halls of Congress.