WHITEWASHING PRECEDENT: FROM THE CHINESE EXCLUSION CASE TO KOREMATSU TO THE MUSLIM TRAVEL BAN CASES.

• Author: Chang, Robert S.
• Position: Symposium on the Seventy-Fifth Anniversary Year of Executive Order 9066

ABSTRACT

The travel ban cases test the extent of the President's authority to promulgate orders regarding the issuance of visas and the entry of refugees. Specifically at issue is whether the President's actions are even reviewable by the courts, as well as whether the President exceeded his statutory authority or acted in violation of the Establishment Clause. Though his government attorneys do not cite to or directly rely upon the Chinese Exclusion Case or Korematsu v. United States,

these cases directly underlie their arguments, providing perhaps the strongest precedential authority for his actions. It is quite possible that the government attorneys believe that they cannot openly invoke these precedents. This article argues that courts should not succumb to this attempt by the government attorneys to let these cases operate sub rosa, and instead should use this opportunity to repudiate two principles embedded in the two cases: that Congress and the Executive exercise plenary power over matters involving immigration and the border that is not subject to judicial review; and that the judiciary must defer to the Executive without meaningful judicial review when national security is invoked. So far, federal courts have faithfully executed their role in our democratic system of checks and balances. They have fulfilled their constitutional obligations by reviewing the actions of the Executive and not merely acting as a rubber stamp to action taken in the name of national security. Time will tell whether this will hold with the Supreme Court.

CONTENTS ABSTRACT CONTENTS INTRODUCTION: A PROFOUND SENSE OF DEJA VU I. IMMIGRATION EXCEPTIONALISM A. The Rise of Immigration Exceptionalism B. Some of the Non-Doctrinal Consequences of Immigration Exceptionalism II. NATIONAL SECURITY EXCEPTIONALISM III. WHITEWASHING PRECEDENT A. Immigration Exceptionalism and National Security Exceptionalism Lie at the Heart of the Government's Legal Arguments in Support of the Muslim Travel Ban B. (Citation Omitted): Obscuring the Racist Precedent Underlying the Principle of Judicial Nonreviewability CONCLUSION INTRODUCTION: A PROFOUND SENSE OF DEJA VU

On January 27, 2017, Hameed Khalid Darweesh, his wife, and his three children were seated in a plane headed to New York City. (1) They were traveling with "golden tickets" authorizing them to enter the United States. (2) They had qualified to come to the United States because Hameed, an Iraqi citizen, had worked in Iraq for the United States as an interpreter, electrical engineer, and a contractor. (3) This had included working as an interpreter for several months for the U.S. Army 101st Airborne in Baghdad and Mosul from 2003 to 2004, several months for the 91st Engineering Unit at Baghdad Airport in 2004, approximately a year as a Project Engineer for the U.S. Government Projects Contracting Office Oil sector from 2005 to 2006, and approximately five years working for Vessar contractors of the U.S. government from 2006 to 2011. (4) He was granted what is known as a Special Immigrant Visa ("SIV"), made available to Iraqi nationals who worked for at least one year as employees or on behalf of the U.S. government and "who ha[ve] experienced or [are] experiencing an ongoing serious threat as a consequence of [that] employment." (5) After being targeted and receiving threats because of his work for the U.S., and having fled with his family a couple times and relocating to different places in Iraq, he applied for an SIV on or around October 1, 2014. (6) Following a lengthy review process, he and his family were finally given SIVs over two years later on January 20, 2017, and were on a plane a week later. (7)

But while they were hurtling through the skies, President Donald J. Trump issued Executive Order No. 13,769 ("EO 1"), and with a stroke of his pen invalidated those immigration visas for persons from seven Muslim-majority nations, including those from Iraq. (8) Upon landing at Kennedy International Airport, Hameed Darweesh was taken into custody. (9) For reasons that remain unclear, his wife and children, though traveling with him from Iraq, and also with immigrant visas, were not detained. (10)

That evening, a lawsuit was filed with Hameed as the lead plaintiff seeking habeas relief and an injunction against the executive order. (11)

The facts in Darweesh v. Trump (12) bear an eerie similarity to the facts in the Chinese Exclusion Case, (13) decided nearly 130 years earlier. On September 7, 1888, Chae Chan Ping embarked on the steamship Belgic from Hong Kong on his way back to San Francisco. (14) He had lived and worked in the San Francisco area since 1875 when he arrived from China. (15) After working nearly twelve years in the United States, Mr. Ping left on June 2, 1887, to visit China. (16) Before leaving for China, he obtained a "certificate of return" that would permit reentry to the United States. (17) Starting in 1884, this certificate of return provided the only legal means by which a Chinese laborer in the United States would be permitted to leave and return. (18) On October 8, 1888, the Belgic arrived in San Francisco and Mr. Ping presented his certificate to the proper custom-house officers but was denied permission to land. (19) Though his certificate was valid when issued, and valid when he left Hong Kong, while the steamship Belgic was making its way across the Pacific Ocean, President Grover Cleveland signed the Scott Act of 1888 on October 1, which canceled all previously issued "certificates of return." (20)

Held aboard the Belgic, he sued for habeas relief, challenging the Scott Act. (21) Described more fully below, he was unsuccessful and he was forced to return to China; what happened to him thereafter is not known. (22) But his legal challenge produced what has come to be known as the plenary power doctrine, a deformity in our constitutional jurisprudence that has produced, and continues to produce, much mischief. (23)

The facts in Darweesh also raise issues similar to those in Korematsu v. United States, (24) which was decided nearly seventy-five years ago. During World War II, Fred Korematsu was convicted of violating Civilian Exclusion Order No. 34, the authority for which came from President Franklin D. Roosevelt's Executive Order 9066. (25) The Exclusion Order required "all persons of Japanese ancestry, both alien and non-alien, be excluded from" a certain area and required "[a] responsible member of each family, and each individual living alone, in the above described area" to report to a Civil Control Station. (26) Justice Hugo Black, delivering the opinion of the Court in Korematsu, noted that:

[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. (27) Though denial of entry to the United States for non-U.S. nationals is certainly different from the forced removal and incarceration of persons of Japanese ancestry, a key shared question is whether the wholesale lumping together of people based on nationality for discriminatory treatment can be justified in the name of national security. This requires a determination of what the role of the judiciary will be in assessing whether sufficient pressing public necessity exists to warrant such discriminatory treatment. In addition, at stake today is the seriousness with which the judiciary will examine whether religious animosity motivates the executive orders.

Though Hameed Darweesh was released and allowed to join his family, (28) and eventually that lawsuit was settled, (29) other legal challenges to later iterations of Executive Order 13,769 currently remain before the courts and will be resolved by the U.S. Supreme Court, as it made clear when it stayed the injunctions issued by the federal district courts in Hawaii and Maryland. (30) After staying the injunctions, (31) and following a per curiam opinion by the Ninth Circuit affirming the injunction, the Court has accepted review of Hawaii v. Trump with regard to what might be referred to as EO3. (32) Argument took place on April 25, 2018, and the Court is expected to issue its decision by the end of June when the Court recesses for the summer.

When the Court finally addresses the merits, a key question is whether history will repeat itself with an affirmation, sub rosa, of the Chinese Exclusion Case and Korematsu v. United States. Though the government attorneys defending the Muslim travel ban do not cite to or directly rely upon the Chinese Exclusion Case or Korematsu, these cases underlie their arguments, and perhaps provide the strongest precedential authority for President Trump's executive actions. (33) More directly, a number of the cases the government relies upon cite directly to the Chinese Exclusion Case and Korematsu; however, as explained below, the government attorneys' citations obscure the connection. (34)

A proper appreciation of the ways the Chinese Exclusion Case and Korematsu lie at the heart of the defense of the Muslim travel ban is necessary to understand fully what is at stake doctrinally. Once these cases are addressed openly, it increases the possibility that the legal challenges will result in a course correction that 1) fixes the constitutional deformity known as the plenary power doctrine and 2) ensures that courts will fulfill their constitutional role as a check to executive power and not simply give the political branches a blank check whenever they invoke national security.

Stated differently, the hope is that the decision rendered by the Supreme Court does not reinstate the flawed jurisprudence behind the Chinese Exclusion Case and Korematsu.

Part I of this Article discusses the cases upholding Asian exclusion in...