EMBRACING THE CHINESE EXCLUSION CASE: AN INTERNATIONAL LAW APPROACH TO RACIAL EXCLUSIONS.

• Author: Kai, Lauri

TABLE OF CONTENTS INTRODUCTION 2619 I. CHAE CHAN PING AND INTERNATIONAL ORDER 2625 A. Pre-Chae Chan Ping Era 2626 B. The Birth of the Plenary Power Doctrine: Chae Chan Ping v. United States 2629 C. Erosion of State Sovereignty: The Individual International Rights Revolution 2632 II. CUSTOMARY INTERNATIONAL LAW'S PROHIBITION ON RACIAL DISCRIMINATION IN ADMISSION LAWS 2633 A. Jus Cogens and Its Legal Framework 2634 B. The Hypothetical Racial Exclusion: Scrutinizing the State's Justifications 2636 1. Justification #1: Jus Cogens Against Discrimination Has Never Been Applied in Admissions 2636 2. Justification #2: Applicable Treaties Prohibiting Discrimination Exempt Admissions 2639 a. The International Convention on the Elimination of All Forms of Racial Discrimination 2640 b. The International Covenant on Civil and Political Rights 2642 c. State Practices Undermine CERD and ICCPR 2645 C. International Law's Prohibition Against Degrading Treatment 2649 1. East African Asians v. United Kingdom 2650 2. Defining "Degrading Treatment" Through the Court's "Dignity Jurisprudence" 2652 III. CUSTOMARY INTERNATIONAL LAW MEETS CHAE CHAN PING AND LIKES WHAT IT SEES 2654 A. Customary International Law's Authority in U.S. Courts 2655 B. Customary International Law as the First-Order Inquiry 2657 C. The Court's Ability to Invalidate Racial Exclusions Under Customary International Law 2660 CONCLUSION 2662 INTRODUCTION

On December 7, 2015, Donald J. Trump called for a "total and complete shutdown of Muslims entering the United States." (1) News outlets rushed to various legal scholars to determine whether a ban from entering the United States based on a person's religious views would be legal. Some suggested that such a ban would violate the First Amendment, even if applied to noncitizens. (2) Yet others relied on the Supreme Court's precedent from 1889, (3) Chae Chan Ping v. United States, commonly known as the Chinese Exclusion Case, in which the Court upheld the Chinese Exclusion Act of 1882 barring Chinese laborers from entry into the United States. (4)

Indeed, a strict holding-based adherence to stare decisis, barely scrutinized for over a century, would give the Court no option but to uphold a ban on Muslims from entering the United States in 2018. (5) First, the conceptual framework of constitutional review in discrimination cases, such as whether discrimination against a particular group requires strict- or heightened-scrutiny analysis, does not apply in the immigration context. (6) Second, and more relevant to this Note, although the Court's approval of the Chinese Exclusion Act in Chae Chan Ping barred entry based on a national security justification premised on race or nationality rather than religion, such a distinction has no doctrinal significance. (7) The doctrine established in Chae Chan Ping--the plenary power doctrine--justifies bans based on both race and national origin, and religion. (8) In Chae Chan Ping, the Court established the judiciary's complete deference to the political branches' immigration decisions. (9) The doctrine's current form, established in 1972 and reaffirmed in 2015, merely asks whether an exclusion is based on a "facially legitimate and bona fide reason." (10) This test could have also justified the Chinese exclusion in 1889, for Chinese laborers were perceived as a national security threat. (11) As long as an exclusion is, on its face, related to the safety of the nation, it seems that any group is susceptible to such a characterization and is thus excludable. (12) Even today, if the government linked a person's race or religion to national security concerns, merely facially but with some rational support, the exclusion is upheld. (11)

President Trump did not go so far as to explicitly ban an entire religion (14) when he passed his first executive order in January 2017 that prohibited the entry of refugees and citizens from seven Muslim-majority countries for ninety days. (15) Indeed, lower courts blocked Trump's every attempt--a total of three--to keep out roughly 150 million aliens. (16) The Supreme Court had been reluctant to step in, (17) except when it granted the government's application to stay in part lower courts' injunctions on Trump's first order. (18) But on January 19, 2018, the Court announced that it would hear the latest challenge to Trump's third executive order arising out of the Ninth Circuit. (19)

Whatever happens in the Supreme Court, the plenary power doctrine will survive. The Court's take on the Ninth Circuit's holding (20) in Hawaii u. Trump will not disturb the plenary power doctrine. First, the doctrine treats the exclusion of aliens as a nonjusticiable question without regard to which political branch is acting. (21) The current "facially legitimate and bona fide reason" test would thus also apply to the acts of the executive, even if an Establishment Clause challenge is raised. (22) Second, the doctrine would survive even if the Court decided the case on statutory, or nondelegation, grounds, as the Court would determine only whether the executive exceeded its "conditional exercise" of "plenary congressional power to make policies and rules for exclusion." (23) And third, the doctrine would remain untouched if the Court decided the case on separation of powers grounds, as the issue would be whether the executive had constitutional authority, either independently or by the implied or express will of Congress, to issue the executive order. (24)

Instead of finding ways around the plenary power doctrine by appealing to statutory frameworks or constitutional power-allocation theories, this Note tackles the doctrine head on. This Note goes further than the President's "thinly-veiled Muslim ban" and analyzes a twenty-first century race-based exclusion, promulgated either by Congress or the executive, under the plenary power doctrine. (25) In analyzing the exclusion, this Note argues that the command of Chae Chan Ping is not its holding, the doctrine establishing deference, but its law. Instead of continuing to deform the doctrine through arbitrary and inherently subjective means (26)--efforts that have made little to no progress over the past 130 years--this Note suggests that the Court revisit Chae Chan Ping, reaffirm its source of law, and enforce that law. That law, however, is international law.

The plenary power doctrine, which first excluded Chinese laborers on the basis of their race and nationality, is condemned for its racist and derogatory origins. (27) But even though the foundation of the doctrine was fueled by xenophobic moods and created in an anachronistic worldview, its premises are still largely relevant today. (28) The underlying legal concept--a sovereign nation's inherent power to exclude--is accepted as a given in today's understanding of international relations. (29) Much of the critical scholarship has focused on eliminating the plenary power doctrine and thus pressed the Court to analyze immigration issues under traditional constitutional review. (30) A sovereign state's domestic law may, and likely does, impose direct limitations on its authority to exclude foreign aliens, but such authority--rooted in international law--is not itself unlimited despite domestic law's restraints. (31) Since the Court impliedly approved Congress's act to bar "vast hordes of [Chinese] crowding in upon" (32) the United States based on international law, that law has gone through major changes, primarily by placing limitations on a sovereign's power to exclude. Accordingly, this Note argues that the plenary power doctrine reflects international law norms. Whereas in 1889, when the sovereign's power to exclude based on race was accepted both domestically and internationally, that is no longer true. Reconsidering the plenary power doctrine under international law reveals that the doctrine today prohibits race discrimination in admissions. (33)

To accomplish the endeavor set out, Part I discusses the nineteenth-century understanding of the right to exclude prior to Chae Chan Ping, the Chae Chan Ping Court's grounding of the right to exclude in state sovereignty, and the subsequent erosion of state sovereignty in the twentieth century. Part II argues that customary international law today prohibits racial discrimination in exclusions. Specifically, this Part argues that, assuming the plaintiff succeeds in bringing a prima facie claim against the state for race discrimination under an international law norm, the state would fail in justifying its departure from that norm. This Part also examines the possibility of whether the Court could find racial discrimination in admissions as constituting "degrading treatment." Part III explains why Part II matters. In particular, this Part explains why the Chae Chan Ping Court got it right when it relied on international law to define the boundaries of a state's exclusionary power, and how the Court can take advantage of Chae Chan Ping to further human rights by holding racial discrimination unlawful in exclusion cases.

1. CHAE CHAN PING AND INTERNATIONAL ORDER

   Chae Chan Ping created a shift in the international order. Prior to this case, free movement and the humanitarian recognition of individuals dominated the international order; the state's power to exclude stood as an exception. (34) The Chae Chan Ping Court flipped the rule and the exception, granting the United States an absolute right to exclude based on the notion of state sovereignty. (35) This Part proceeds by discussing the liberal notions of free movement prior to Chae Chan Ping, how the Court diverged from that understanding, and how that shift never took hold in its absolute terms.

   1. Pre-Chae Chan Ping Era

      Unlike in the post- Chae Chan Ping era, a sovereign state's absolute right to exclude was not commonly recognized until the late nineteenth century. (36) The Bible, which influenced the development of international law in the seventeenth and...