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Is Immigration Executive Power Based On 19th Cent. Racial Exclusion? By Roger Algase

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This comment will be the first in a series taking a closer look at three famous late 19th Century US Supreme Court decisions dealing with the relative powers of the three branches of the federal government over immigration. These decisions have been called the "building blocks" of the doctrine of Plenary Power over immigration by the "political branches" of government, Congress and the executive, as opposed to the judicial branch, i.e. the courts. Specifically, these cases will be discussed from the standpoint of how much support they give, if any, to the argument that the president has broad authority to determine deportation policy through executive action, including authority to grant relief from deportation and work permits to millions of people who are in the United States without legal status.

The three decisions I will discuss are Chae Chan Ping v. U.S. also known as the Chinese Exclusion Case (1889), Nishimura Ekiu v. U.S. (1892) and Fong Yue Ting v. U.S. (1893). In keeping with the practice of referring to all U.S. court decisions by the family (or "last") names of individual parties, as in, for example Marbury v. Madison, the above cases will be referred to correctly hereinafter as Chae, Nishimura and Fong, contrary to the practice of most writers, who, for some reason, incorrectly refer to these decisions by the plaintiffs' given, or "first" names: i.e. "Ping", "Ekiu" (an apparent mis-transcription - was the plaintiff's correct first name really "Akiyo"?) or "Ting".

All three of these decisions were handed down at a time of great anti-Asian prejudice, leading to the enactment of the first of the infamous Chinese exclusion laws in 1882. However, only two of them, Chae and Fong, actually involved those laws, because, at that time, there were were no laws specifically excluding citizens of Japan. That would come later, in the early part of the 20th century.

None of these three decisions was exactly a model of due process or fundamental fairness (not to mention equal protection of the law) and for this reason alone, the frequently made statement that all three cases are still "good law" today may be open to question. There have certainly been significant advances in the idea of due process in immigration cases since that time.

However, all three cases are still relevant to the argument that the above two "political" branches of the federal government have very broad powers of over immigration policy and enforcement, compared to the courts. The question is whether they have anything to say about the respective powers of Congress and the executive, as opposed to each other, which is the big issue facing America today, as President Obama reportedly readies his long awaited by some, and bitterly opposed by others, proposals for executive action to expand relief from deportation to additional classes of people.

I will begin with a brief summary of each case. In Chae, a Chinese laborer who had been granted a legal residence certificate in the US (a prototype of today's green card), made a temporary trip back to China for a visit.

While he was outside the US, Congress passed a law (in 1888) canceling the validity of such certificates. When Chae tried to return to the US, he was refused admission and the refusal was upheld by the Supreme Court based on the doctrine that there was no Constitutional right to enter the US on the part of a non-citizen, and that Congress had the authority to cancel the previously issued certificate of residence as part of the inherent sovereign right of a nation to control its own borders.

In Nishimura, a Japanese woman (who, for this reason, as mentioned above, was not affected by the Chinese exclusion laws) sought to enter the US by claiming that she was married to a US citizen who would come to pick her up at an unspecified hotel after she was admitted to the US. No husband was ever produced, and despite the fact that the plaintiff was in possession of $22 (probably equivalent to at least $1,000 in today's money), her case was arguably not as strong as might have been desirable in terms of credibility.

She was excluded by the immigration officer in charge on the grounds of being likely to become a public charge (still grounds for exclusion today), without any record of a hearing or taking of testimony. The Supreme Court held that, with regard to immigration, the lack of a hearing or testimony did not violate the due process clause of the Constitution, and that due process for a foreign citizen trying to enter the US was whatever Congress said it was.

The third case, Fong, unlike the two previous ones, involved someone who has not seeking entry but had already been legally admitted to the US and was living in this country. However, he had failed to or been unable to obtain a certificate of residence within the one-year period required under the Chinese exclusion law. Nor had he been able to produce a white witness to his residence, as was required by that statute in the absence of a residence certificate. The Supreme Court, despite vigorous dissents by two of its Justices, held that deporting the plaintiff for failure to comply with this bigoted law did not violate the Constitution.

In my next installments I will examine whether these cases have anything to say specifically about the power of the executive branch over immigration that is relevant to today's debate over anticipated presidential action to expand the scope of relief from deportation.

To be continued.
___________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been successfully upholding the legal rights of business, employment and family-based immigrants for more than 30 years. His email address is algaselex@gmail.com

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Updated 11-14-2014 at 12:26 AM by ImmigrationLawBlogs

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