Unthinkable as it may have seemed only a week or two ago, Donald Trump's latest proposal to bar all Muslim immigrants from entering the United States has now taken America back to the point of having to interpret late 19th Century Supreme Court Decisions regarding the notorious Chinese Exclusion Laws to see if such a ban would be permitted by the Constitution.

As is well known, but most Americans would prefer to forget, the Supreme Court ruled, most notably in Chae Chan Ping v. US, 130 U.S. 581 (1889) that excluding immigrants on the basis of race did not violate the US Constitution, which give the federal government "plenary power" over immigration.

In that decision, using openly racist language that was typical of that era, Justice Field, writing for the Court, referred to the power of the federal government to protect the nation against "aggression and encroachment" from "vast hordes of its [a foreign nation's] people crowding in among us." He stated, in words that have become infamous in America's legal history:

" If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed..."

The notion that this 126 year-old decision, representing one of the darkest periods of prejudice ever known in America, could even be looked to a precedent for determining the Constitutionality of any law regarding entry into the US today, is disturbing enough. But in the opinion of one legal scholar, Natsu Taylor Saito, a professor of law at Georgia State University and expert on the legal history of race and plenary power in immigration law, a ban on Muslim immigrants might be permissible on the basis of the Chae decision, even though if the exclusion is phrased in terms of religion rather than race.

Huffington Post
quotes Professor Saito as follows, referring to Trump's proposal in relation to the Chinese Exclusion laws :

"I don't think this is significantly different...It is targeting people on the basis of religion rather than national origin. But we all know that this particular targeting of Muslims is highly racialized and tied to national origins. So I think it is similar."

Huffington Post also cites Stephen Legomsky, former USCIS general counsel, as agreeing that the Supreme Court's decision under the Chinese Exclusion Act would be authority of upholding a Trump-style ban on Muslim visitors - it is not clear whether Legomsky meant all immigrants - if Congress were to enact such a law. See:


The above raises two important questions: First, since the Chae Chan Ping case also makes clear that plenary power over immigration rests with the federal government only, and that it is an area over which the states have no power, would this decision not be authority for throwing out the lawsuit by Texas and 25 other states seeking to block President Obama's DAPA and DACA extension initiatives?

Would the same decision not be even stronger authority for dismissing the lawsuit by Texas seeking to bar the federal government from relocating Syrian refugees in that state?

Second, and perhaps most importantly, since free exercise of religion is expressly protected and establishment of religion is prohibited by the Constitution, would there not be a distinction between Trump's proposal and the notorious Chinese exclusion laws?

Is Trump's proposal to discriminate among immigrants purely on the basis of religion not going beyond even the Chinese exclusion laws themselves in raising question as to Constitutionality?

These questions will be explored in more detail in an upcoming post.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants from many parts of the world obtain work visas and green cards for more than 35 years. Roger's email address is algaselex@gmail.com