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Why Have The Chinese Exclusion Decisions Not Been Overruled? By Roger Algase

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In this continuing look back at the three notorious late 19th century Supreme Court decisions dating from the beginning of the infamous Chinese exclusion laws, one of the worst stains on America's entire immigration, legislative and judicial history, I have shown that even in these decisions, which one of the dissenting justices (in Fong Yue Ting v. U.S., 1893) called despotic, there was found to be nothing in the Constitution which would specifically prevent the executive, acting according broad powers to administer the immigration laws granted by Congress, from admitting a specific class of immigrants or allowing them to stay in the United States. For this reason, nothing in these decisions, which still form the foundations of immigration law today would prohibit President Obama from carrying out his anticipated executive action to extend the scope of temporary relief from deportation today.

But while these decisions arguably allow the president to grant relief from deportation through executive action, they do not require him, or Congress, to do so. All three decisions are emphatic in holding that U.S non-citizens have no fundamental or Constitutional rights to protection against exclusion or deportation, and that they can enter or stay in the US only as long as Congress and the executive allow them to. Even foreign citizens who were legally admitted and have established residence in the US for a long time can be thrown out at any time, based on Congressional (as in the case of deportation ex post facto for green card holders convicted of "aggravated felonies" under IIRIRA), or administrative (as in the case of President George W. Bush's failed anti-Muslim "Special Registration) whim.

This was the thrust of the holding in Chae Chan Ping v. US (1889, also referred to as The Chinese Exclusion Case), in which the plaintiff had a certificate of residence which was the prototype of today's green card, but which was revoked arbitrarily by an act of Congress while he was outside the US on a visit to China. His denial of re-admission to the US was upheld by the US Supreme Court.

In Fong, an immigrant who had also been legally admitted and been residing in the US was expelled because of inability to obtain a white witness to attest that he had been living here.

In Nishimura Ekiu v. US (1892) a Japanese woman, even though admittedly not necessarily someone with the strongest possible evidence that she would not become a public charge (a reason for exclusion that in practice was used to bar immigrants of color more than white immigrants, according to studies of that period) was denied entry without any testimony or hearing.

Where was the fundamental fairness or justice in those decisions? Do they not shock the conscience of anyone who believes in fundamental fairness or basic human rights, just as they shocked the consciences of the two dissenting justices in the Fong case?

Were these decisions not, in effect, the immigration law equivalent of Dred Scott v Sanford, (1857) the single most notorious judicial decision in the entire history of the United States, which held that people of African descent could never become US citizens?

But Dred Scott ceased to be the law after the end of the Civil War and the adoption of the 14th Amendment, in 1868. Why are the equally unfair, unjust and reprehensible Supreme Court decisions dating from the time of the Chinese exclusion laws, which were almost the equivalent of slavery as far as Asian immigrants were concerned and remained on the books for more than 60 years, until 1943, still the foundation of America's immigration system today, at least with their regard to their denial of the existence fundamental Constitutional rights for immigrants?

In my next and final comment on these cases, I will show that these three decisions, and the negative and discriminatory immigration system that they upheld, are by no means only part of our past, forgotten immigration history. Their pernicious effect on immigration policy, especially immigration enforcement, continues today. The denial of basic Constitutional and human rights, whether through mass exclusion as in the case of the 1924 immigration act and similar restrictive racial quota laws, or mass expulsion, such as is taking place today, is by no means limited to members of a particular ethnic group or groups, even though, clearly, Latinos are the main targets of popular anti-immigrant prejudice today.

Just as Chinese and other East Asian immigrants were not the only victims of San Francisco's notorious Angel Island detention facility in the late 19th and early 20th centuries, Mexican, Central American and South American immigrants are not the only ones whose families are being torn apart and hopes for the future dashed by today's draconian enforcement policies, which owe their origins in large part to the above three Supreme Court decisions and the harsh anti-immigrant policies and practices which they upheld.

Should not these three old, far outdated decisions that have come down to us from an earlier time of racial prejudice and exclusion have long since been overruled?

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Updated 11-17-2014 at 05:20 AM by ImmigrationLawBlogs

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