Immigration and Alienage (Update 1)

AuthorT. Alexander Aleinikoff
Pages1330-1332

Page 1330

Federal regulation of immigration did not begin until late in the nineteenth century, and the current code of complex admissions categories and limitations is wholly a product of the twentieth century. The first significant tests of congressional authority to exclude and deport noncitizens came in CHAE CHAN PING V. UNITED STATES (1889) and Fong Yue Ting v. United States (1893), cases challenging federal immigration law that barred the entry of Chinese laborers, notably the CHINESE EXCLUSION ACT OF 1882. Although the Constitution includes no express provision authorizing the enactment of immigration laws, the Supreme Court held that such a power inhered in the notion of SOVEREIGNTY and was closely associated with exercise of the FOREIGN AFFAIRS power of the United States. It also ruled that congressional decisions as to which classes of aliens should be entitled to enter and remain in the United States are largely beyond judicial scrutiny.

Modern cases reaffirm that the Constitution provides virtually no limit on Congress's power to define the substantive grounds of exclusion and DEPORTATION. It is also well established that removal of aliens from the United States is not "punishment" in a constitutional sense, and therefore, prohibitions against CRUEL AND UNUSUAL PUNISHMENT, EX POST FACTO LAWS, and BILLS OF ATTAINDER are not deemed to apply to regulations of immigration. Nor does the due process clause of the Constitution offer protection to ALIENS applying for initial admission to the United States. Such an alien, the Court stated most recently in Landon v. Plasencia (1982), requests a "privilege" and has "no constitutional rights regarding his application" for admission.

It is a dramatic overstatement, however, to conclude that noncitizens in the United States have no constitutional rights. Aliens are generally afforded the constitutional rights extended to citizens (although they are not eligible for federal elective office and do not come within the protection of constitutional provisions prohibiting discrimination in voting). An alien arrested for a crime is entitled to the various protections of the FOURTH AMENDMENT, Fifth Amendment, Sixth Amendment, and Eighth Amendment; an alien may assert FIRST AMENDMENT rights in a situation in which such claims may be made by citizens. In the important case of Wong Wing v. United States (1896), the Court invalidated a provision of the 1892 immigration statute providing for the imprisonment at hard labor of any Chinese laborer determined by executive

Page 1331

branch officials to be in the United States illegally. Distinguishing this provision from immigration regulations that bar entry or mandate removal...

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