AuthorErman, Sam

Chae Chan Ping v. United States. By Rose Cuison-Villazor, in CRITICAL RACE JUDGMENTS: REWRITTEN U.S. COURT OPINIONS ON RACE AND THE LAW 74, 84. Edited by Bennett Capers, Devon W. Carbado, RA Lenhardt and Angela Onwuachi-Willig. Cambridge: Cambridge University Press. 2022. Pp. xxx, 694. Cloth, $84.75; paper, $39.19.

Rose Cuison-Villazor's (1) counterhistory reminds us that Chae Chan Ping v. United States (1889) (2) is a blight on U.S. constitutional law. Based on thin contemporary legal authority, this so-called Chinese Exclusion Case upheld the unfair and racist Chinese Exclusion Act of 1888. (3) Today, that precedent insulates governmental discrimination against aliens at borders from meaningful constitutional scrutiny. Cuison-Villazor's alternative opinion reminds us that it did not have to be this way. This Review reflects on why it nonetheless was. Its partial answer involves what I term "status manipulation." (4) That is when officials hide and defend illiberal, undemocratic acts by exploiting the plasticity of seemingly unchanging legal categories such as resident, alien, and sovereign.

The genesis of Chae Chan Ping was its namesake's decision to return to China temporarily in 1887 (p. 77). That was difficult for a Chinese national such as Chae who resided in the United States and worked as a laborer there (p. 74). If Chae simply left on his travels, the harsh immigration rules established by the virulently racist Chinese Exclusion Acts of 1882 and 1884 (5) would bar him from reentering the United States afterward. To be eligible for reentry, Chae had to secure a certificate from the United States before he departed U.S. territory (p. 77). He did so before departing on a trip to China of just over a year (p. 77). But then, while Chae was en route on his voyage home in 1888, Congress enacted a statute voiding reentry certificates such as Chae's, effective immediately. (6) Thus, when Chae reached California, immigration officials denied him entry (p. 77). He went to court, claiming a denial of constitutional due process. (7) The Supreme Court disagreed: "[T]he United States, through the action of the legislative department, can exclude aliens from its territory," (8) and such action is "necessarily conclusive upon all its departments and officers." (9) Here was the foundation of what would come to be known as Congress's "plenary" power to enact immigration legislation free from most constitutional constraints. (10)

As Cuison-Villazor deftly shows, this far-reaching doctrine contravened text, precedent, historical practice, and structural sense. Consider the focus on alienage, which is nowhere to be found in the Due Process Clause of the Fifth Amendment: "[N]o person shall ... be deprived of life, liberty or property without due process of law" (p. 79). In Yick Wo v. Hopkins, (11) the Supreme Court had explained that nearly identical language in the Fourteenth Amendment was '"not confined to the protection of citizens' but rather 'applies to all persons'" (p. 79). Similarly, the Court had "never held that the application of the Constitution is limited to the borders of the United States." (12) Nor did focusing on the combination of alienage and extraterritoriality redeem the logic. Such an argument would rest on a plenary federal "immigration power." But any such power--much less a plenary one--is notable for "its absence from the text of the Constitution" (p. 81). Historical practice actually points toward states' retention of that power: "Historically, states regulated immigration law. Indeed, for the first 100 years of this country, the federal government did not ... regulate the admission of noncitizens to the United States" (p. 81). To the extent that the immigration power were to arise from an enumerated congressional power such as the Foreign Commerce Clause, Congress would be subject to ordinary constitutional constraints in exercising it. Its position within the constitutional structure would be such that "exercise of this immigration power [would not be] plenary or absolute" (p. 81).

The Court had better alternatives. Several bases existed for upholding Congress's power to regulate immigration and to preempt contrary state laws: "the power to provide for the common defense and general welfare, the regulation of commerce with foreign nations, and establish a uniform rule of naturalization" (p. 81). The Court could have clearly stated that it was limiting its decision to one of those bases. All would have been subject to normal constitutional limitations, including due process requirements. Had it done so, the Court could then have used those limitations to treat Chae's U.S. residence and right to return as "property interests and reasonable reliance and expectations" that the government could not "arbitrarily or capriciously" extinguish "because of' Chae's race. (13)

The choice to instead introduce an exclusionary, illiberal, and inegalitarian principle to U.S. constitutional doctrine has proved enduring. For nigh a century and a half, the Court's Chae Chan Ping declaration that aliens at U.S. borders exist outside the Constitution has insulated governmental racism, sexism, and islamophobia from judicial scrutiny. (14) That was true, of course, in Chae Chan Ping, as well as the string of ensuing decisions affirming exclusions of others of Asian descent. (15) Much later, Fiallo v. Bell (1977) confronted whether unconstitutional sex discrimination occurred when U.S. familial-immigration preferences differed depending upon whether the citizen and foreigner were a father and child or a mother and child. (16) The Court cited Chae Chan Ping to declare this to be a question of aliens and borders "largely immune from judicial control." (17) Four decades later, President Trump tested the limits of the doctrine by demanding "a total and complete shutdown of Muslims entering the United States" and then implementing three travel bans that mostly affected Muslims. (18) Rather than decide whether the third of these...

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