Thursday, April 20, 2017

Immigration Article of the Day: Embracing the Chinese Exclusion Case: A Back-Door Solution to Racial Exclusions by Lauri Kai


Embracing the Chinese Exclusion Case: A Back-Door Solution to Racial Exclusions by Lauri Kai, William & Mary Law Review, Vol. 59, 2018, Forthcoming


On December 7, 2015, Donald J. Trump called for a “total and complete shutdown of Muslims entering the United States.” The Court’s precedent from 1889, Chae Chan Ping v. United States — commonly known as the Chinese Exclusion Case — allows the Court to uphold a ban on Muslims from entering the U.S in 2017. There, the Court upheld Congress's ban of Chinese laborers from entry to the U.S. by creating the plenary power doctrine.

This doctrine does not provide for a rationale to uphold bans based on race or national origin, but not based on religion. In Chae Chan Ping, the doctrine demanded judiciary’s complete deference to the political branches’ immigration decisions. The doctrine’s current form, established in 1972 and reaffirmed through 2015, merely asks whether an exclusion is made on a “facially legitimate and bona fide reason.” As long as the exclusion is on its face related to the safety of the nation, it seems that any group is susceptible to such a characterization and is thus excludable. Even in 2017, if the government could — merely facially but with some rational support — link a person’s race or religion to national security concerns, the exclusion is upheld.

President Trump’s recent executive orders prohibiting the entry of refugees and citizens from certain Muslim-majority countries has caused much concern. However, the courts analyzing these orders have rendered inconsistent and doctrinally incoherent rulings. This Note recognizes the legal mess revolving around aliens’ right to enter the United States and finds that it is time to stop distorting the plenary power doctrine. A multitude of scholars has criticized the plenary power doctrine set out in Chae Chan Ping and its progeny based on the Court’s reluctance to engage in traditional constitutional review of immigration questions. These criticisms have led in part to the distortion of the doctrine, as courts find ways around the plenary power doctrine’s command.

This Note, however, argues that the doctrine’s command is not its holding — the doctrine establishing deference — but its law. The Chae Chan Ping Court founded the plenary power doctrine in international law — in the concept of state sovereignty. State sovereignty has gone through a transformative change in the past 130 years by states' consent to various limitations. However, states' reliance on state sovereignty justifying territorial exclusions will necessarily endure. By revisiting Chae Chan Ping, the Court can rely on the necessarily enduring state sovereignty, which the evolving customary international law constrains, to refuse deference to the political branches in racial exclusions.

Specifically, this Note argues that, like in 1889, when the Court erroneously concluded that a sovereign’s power to exclude is absolute, that power is still limited. But unlike in 1889, when racial discrimination was an accepted norm both domestically and internationally, customary international law now prohibits race discrimination in admissions. This Note makes the first attempt in finding racial exclusions unlawful under jus cogens by scrutinizing state's potential justifications for deviating from the norm. This Note undermines the state's reliance on claims that no court has applied jus cogens to admissions and that well-known treaties addressing racial discrimination exempt immigration from their application.

This Note relies exclusively on racial, and not religious, discrimination because it has been more prevalent and, while race-based exclusions are rare, exclusions based on religion are even scarcer. And, while the structural argument in this Note is applicable to religion-based exclusions, this Note is ultimately not concerned with its cross-application to religion and thus renders those considerations outside of its scope.


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