Immigration Article of the Day: Reversing Racist Precedent by Ahilan Arulanantham

The Immigration Article of the Day is Reversing Racist Precedent by Ahilan Arulanantham, forthcoming in the Georgetown Law Journal and available here in SSRN.

Here is the abstract:

The Supreme Court has long read the Constitution to prohibit state action motivated by racial animus. Courts have applied that prohibition to various forms of governmental decisionmaking, from the individual decisions of judicial officers to constitutional amendments enacted by states. Yet they have not applied it to their own prior precedent. No court, including the Supreme Court, has ever held that courts must disregard prior court decisions that were themselves motivated by racial animus on the ground that such decisions violate the Constitution’s anti-discrimination constraint.

I first noticed that strange omission while litigating immigration cases against the federal government, several of which involved race discrimination claims. Time and time again I found government attorneys relying on cases from the Chinese Exclusion Era to support their positions, despite the fact that those cases are full of racist reasoning and rhetoric.

Courts often accepted those arguments, occasionally even citing the Chinese Exclusion Era cases themselves.

In this Article, I identify racist precedent as a key feature of our legal system that furthers racial injustice. I argue that the Constitution’s prohibition on invidious race discrimination should apply to court decisions by stripping such decisions of precedential force. Courts should apply that principle by creating a new exception in stare decisis doctrine: cases should be denied precedential force if they were motivated by racial animus. I ground this argument in anti-discrimination caselaw and show how it could operate alongside extant stare decisis doctrine. I then respond to various objections. Finally, I illustrate how the approach would work in detail by applying it to two Chinese Exclusion Era cases that remain foundational to contemporary constitutional immigration law.

Applying the Constitution’s prohibition on invidious race discrimination to prior precedent would dramatically alter the legal landscape in areas like immigration law, where the governing doctrine rests on cases infected by racism. It would give lawyers a reason, and judges an obligation, to examine the potentially racist origins of many rules that would otherwise be left undisturbed. If embraced fully, this doctrinal shift could disrupt a foundational source of structural racism in our legal system—the continued force of racist precedents.

IE