Foundations of Immigration Power

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  1. Foundations of Immigration Power
    1. Chinese Exclusion

Chae Chan Ping (1889) – the Chinese Exclusion Case.

Court (Field): Congress has power to pass exclusion statute; federal plenary power over immigration.

Violation of prior treaties via statute OK because both are supreme.

FA left to feds for a reason and immigration is a national/FA/security issue (not local).  Self-preservation requires immigration regulation.  Sovereignty can’t be restricted by foreign sources.

Congress’s conclusion that some foreigners are dangerous is binding on courts even absent war.

Courts should be deferent/leave FA questions to political branches.

Fong Yue Ting (1893) Plenary power also includes power to deport.

Chinese laborers caught w/out statutorily required certificates; detained pending deportation; petition for habeas.

Right to deport is as absolute as right to bar entrance – present @ will of Congress.

No due process violations because this isn’t a punishment – not in the criminal realm.

And this is a PQ not for courts.

Brewer dissent: DP is an individual right for anyone w/in the jurisdiction (location)

Field dissent (note he wrote Chae Chan Ping!): HR-esque “common humanity;” sees a slippery slope here he didn’t there (could you shoot an alien?).

Fuller dissent: Deportation, unlike refusal of admission, takes away something lawfully (under US law/const) acquired (lawful stake).

Wong Wing v. US (1896) Hard labor in pre-deportation detention IS punishment and 5th Amendment Violation.  Can’t be imposed w/out trial.

Where did power come from?

Inherent power– power to regulate foreigners is inherent in a nation’s sovereignty.  Otherwise a state would be subject to some control by other states if it could not keep out their citizens.  So why don’t states get it under the 10th amendment? Why defer, like SC has, to international law to find it?  If the power is extra constitutional, why is it that noncitizens have protection under the 1st, 4th, 5th, and 6th amendments.

Constructional and structural arguments

Rule of necessity- Hand says it’s ok to read in provisions in a text that are necessary to prevent the defeat of the venture at hand, so we need an immigration power to be a sovereign nation.

Black’s structural justification- the power is an inference from the shape and structure of the constitution and the institutions it creates, like a nation with a defined territory, citizens, and a central government.  Also, decisions on immigration are about self definition and who we are as a nation, and we need that power.

Yick Wo: Equal Protection

A SF ordinance regulating laundries shut down only Chinese laundries.  SC says Chinese nationals ARE covered by EPC

For immigration, doesn’t kick in, since the 14th Am. Didn’t’ apply to the feds in the 19th century.

SC recognizes broad congressional authority to make rules that would be unacceptable if applied to noncitizens at the federal level.

Wong Wing v. U.S.: Const. criminal protections

Since deportation isn’t a crime for the purposes of the 4th, 5th, and 6th Ams, does that mean unlawful noncitizens can be detained without any process or protections? 1892 act said unlawful Chinese could be imprisoned at hard labor for 1 year and deported without trial by jury.

SC: Hard labor is punishment, they need a trial.  They get the Constitution for criminal matters.

However, temporary confinement for deportation purposes is not criminal punishment, so is civil and doesn’t trigger full protections.

    1. Sources of the Immigration Power

Chinese Exclusion Case (Chae Chan Ping v. United States), 1889.

Treaty of 1880 authorized the U.S. to suspend immigration of Chinese laborers only, and preserved the right of those present to leave and re-enter.

1882 Act suspended Chinese immigration for 10 years, and certificates of identity allowed current laborers to re-enter.

Chae Chan Ping had a certificate and was denied re-admission: sued for constitutional and treaty violations.

Unanimous SC: Congress had right to restrict aliens because U.S. has sovereign power to admit and deny. Has delegated powers re: war, treaties, commerce, naturalize, etc. If country couldn’t exclude it would be controlled by other countries. A license to return was revocable at any time. This is a political issue, not a judicial one.

Article I delegated powers: Do these give the power to regulate immigration?

Commerce power: I.8.3.Previously came up with immigration regulations through taxes and regulations on ships entering. Some immigrants come for commercial purposes, but many (children, refugees, spouses) do not, – is this “commerce?” Edwards v. California, p.178, says maybe.

Naturalization power: I.8.4. Used in the past, but weak since admission isn’t the same as naturalization.

War power: I.8.11 Might apply to stopping entry of enemy aliens, but that’s about it.

Migration and importation clause: I.9.1: This is really about slavery.

Foreign affairs power: Ha, this isn’t delegated. Still, some immigration relates to foreign affairs, like investigating Iranian students in 1980. This power has led the courts to invalidate state statutes regulating immigration.

Inherent power – power to regulate foreigners in inherent in a nation’s sovereignty. Otherwise a state would be subject to some control by other states if it could not keep out their citizens. So why don’t states get it under the 10th Amendment? Why defer, like SC has, to international law to find it? If the power is extra-constitutional, why is it that excluded noncitizens have the protection of the 1st, 4th, 5th, and 6th Amendments?

Constructional and structural arguments

Rule of necessity – Hand says it’s OK to read in provisions in a text that are necessary to “prevent the defeat of the venture at hand,” so we need an immigration power to be a sovereign nation.

Black’s “structural justification” – the power is an inference from the shape and structure of the Constitution and the institutions it creates, like a nation with defined territory, citizens, and a central government. Also, decisions on immigration are about self-definition and who we are as a nation, and we need that power.

Yick Wo v. Hopkins (1886) – Equal protection

A SF ordinance regulating laundries shut down only Chinese laundries. SC says Chinese nationals ARE covered by the EPC.

For immigration, doesn’t kick in, since the 14th Am. didn’t apply to the feds in the 19th century.

SC recognizes broad congressional authority to make rules that would be unacceptable if applied to noncitizens. The 14th Am. still doesn’t always apply to noncitizens at the federal level.

Fong Yue Ting v. U.S. (1893) – Due process

1892 Act required Chinese laborers to have a white witness attest they were residents to escape deportation. 3 detained laborers sue for habeas corpus, alleging due process violations.

SC majority: Right to exclude and deport is absolute. Since Chinese can’t naturalize, they’re always aliens and subject to deportation. Congress can say who’s a competent witness. Deportation is not a punishment, so they’re not entitled to due process.

Dissenters: There is not arbitrary power to deport. This is punishment and they are being deprived due process. They were lawfully IN the US so should get more constitutional protections (than CC Ping)

Wong Wing v. United States (1896) – Const. criminal protections

Since deportation isn’t a crime for the purposes of the 4th, 5th, and 6th Ams, does that mean unlawful noncitizens can be detained without any process or protections? 1892 act said unlawful Chinese could be imprisoned at hard labor for 1 yr and deported w/o trial by jury.

SC: Hard labor is punishment, they need a trial. They get the Constitution for criminal matters.

However, temporary confinement for deportation purposes (detention) is not criminal punishment, so is civil and doesn’t trigger full protections.