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Does Plenary Power Over Immigration Trump Freedom of Religion? Pt. 1. Roger Algase

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In these days of heightened fear and paranoia over the idea of admitting Syrian refugees, or any Muslim immigrants at all, to the US, even Donald Trump's most extreme Islamaphobic supporters are forced to admit that the free exercise clause of the First Amendment to the Constitution would prohibit Congress from passing a law closing US mosques or prohibiting Muslim US citizens from entering the country or practicing their religion here. But they argue that, under the long-standing doctrine of Plenary Power over immigration, the Constitution does not bar restrictions of any type over the rights of Muslim non-US citizens, particularly regarding the right to enter the United States.

In other words, as the often-heard argument goes, constitutional guarantees such as due process, equal protection and freedom of religion for non-citizens are whatever Congress says they are. Therefore, it is instructive to look at the origins of the Plenary Power doctrine in the late 19th century and how it has been applied up until the present in order to justify denying basic constitutional and human rights to immigrants, especially those belonging to unpopular racial or religious minorities.

I will also examine whether the Plenary Power doctrine, if it ever was appropriate in the past, is still appropriate for an ethnically and religiously diverse nation such as the United States in the 21st century, in its role as a member of the global community of nations. This will be the first of a series of comments dealing with this issue.

I will begin by discussing an extensive and detailed analysis of the origin and effect of the Power Doctrine by Geogia State University College of Law Professor Natsu Taylor Saito, in an article published in the Asian Law Journal in the wake of the 9/11 attacks. See:

The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for On-Going Abuses of Human Rights

10 Asian American Law Journal 13 (2003)

Professor Saito begins:

"We tend to think of Chae Chan Ping v. United States and the other Chinese exclusion cases of the late 1800's as a remnant of the racist past of exclusion and segregation in America. However, these cases have had a tenacious grip on American law, and are very much alive and well...

The Chinese exclusion cases provide a valuable lens through which we can look at the significant role that the plenary power doctrine exercises in American jurisprudence...More than a century of plenary power cases further demonstrate that the fate of Asian American communities is inextricably linked to that of all those deemed "Other" in America today, whether by virtue of race, ethnicity, national origin, religion, or citizenship status."

As Professor Saito's article, to be discussed further in my upcoming posts in this series, shows, his comments apply not only to Asian Americans, but to Muslim and Middle Eastern immigrants, as well as many other minority group members.

To be continued in Part 2.
________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.

Roger believes that every person, regardless of citizenship or immigration status, who is in the United States, or is seeking lawful admission to this country, should be entitled to basic constitutional guarantees and human rights. His email address is algaselex@gmail.com




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Updated 01-05-2016 at 01:40 PM by ImmigrationLawBlogs

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