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Executive Power and 19th Century Immigration Exclusion, Pt. 2. By Roger Algase

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As the raucous shouts by immigration opponents that President Obama would be violating the Constitution by going ahead with reported plans to extend relief from deportation to more people though executive action become louder and louder, and as the threats of impeachment, and/or a government shutdown over this issue become even more extreme and frenetic, it is more topical than ever before to take a closer look at the origins of executive power over immigration enforcement.

As almost everyone who has studied this issue agrees, this power dates from the time of the notorious Chinese exclusion laws which began in 1882 and remained in effect for more than 60 years, until 1943, after having been extended to ban or drastically restrict immigration from many other parts of Asia as well. The original purpose of broad executive power was to make it as easy as possible for the federal government to exclude or deport Chinese and other immigrants belonging to unpopular ethnic groups. As made clear in the three leading 19th Century Supreme Court decisions mentioned in my November 13 comment, Chae, Nishimura and Fong, Constitutional rights such as due process were looked on as an inconvenience and obstacle to deporting or excluding unwanted immigrants as quickly and efficiently as possible.

This attitude toward the Constitution is still very much with us today, as shown, for example, by the Obama administration's rush to "prioritize" removal hearings against Central American children fleeing violence in their home countries while denying them any meaningful opportunity to obtain the lawyers which they are entitled to not only by the Constitution but by statute. See my recent ilw.com comments on this issue.

Therefore, the main purpose of the Chinese exclusion act decisions was to push the courts out of the way so that they would interfere as little as possible with the machinery of expulsion from or refusal of entry to America.

As the Supreme Court held in Nishimura (Nishimura Ekiu v. U.S., 142 U.S. 651, 659 (1892), the power to admit or exclude foreign citizens was intended by the Constitution, and by the concept of national sovereignty itself, to belong to the "political" department of the national government, namely Congress and the executive, not the judicial branch:

"It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted to the country pursuant to law shall be permitted to enter in opposition to the constitutional and lawful measures of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law (citation omitted). Nishimura, supra, at 660 - emphasis added.

One has to wonder if the Supreme Court in that case would have been so emphatic about keeping the judicial branch out of the immigration enforcement decision-making process if the immigration officer in charge (part of the Treasury Department, in those days) had decided to admit the plaintiff, Nishimura, instead of sending her back to Japan on the grounds of being likely to become a public charge.

As suggested in my November 13 post, in the light of hindsight, Nishimura's claim for admission to the US did not exactly come up to a modern immigration lawyer's ideal of credibility.

But suppose that the immigration official in that case had decided, without any hearing or testimony, that Nishimura's story was credible, that her (unidentified) US husband was indeed planning to pick her up at some (unspecified) hotel in San Francisco after her admission to the US, and that the $22 that she admittedly had with her (probably equal to at least $1,000 in today's money, as I mentioned previously) was in fact enough to ensure that she would not become a public charge.

Would there not have been howls of anguish from the powerful anti-immigrant side of that day calling for the courts to step in and overturn a decision to admit her, or other unpopular Asian immigrants who were in a similar situation? Or, conceivably, would the US government itself not have appealed to a federal court claiming that the admitting officer was acting in an arbitrary and unreasonable manner, and exceeding his constitutional and statutory authority by letting her into the US without a hearing or testimony on the basis of such a flimsy claim?

Of course, we will never know, since Ms. (Akiyo, perhaps, misspelled as "Ekiu"?) Nishimura was apparently sent back to Japan more than 120 years ago and thereafter disappeared from the pages of US immigration history.

To be continued.

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Updated 11-14-2014 at 08:43 PM by ImmigrationLawBlogs

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