Constitution may allow Congress to bar Muslim immigrants

There are approximately 6-8 million Muslims living in the United States.
There are approximately 6-8 million Muslims living in the United States.

Politicians are trying to collect votes by calling for a ban on Muslim immigration. As extremist as these proposals are, Americans take comfort in the thought that even if they were attempted, the courts would overturn them. This sort of discrimination must be illegal under the 14th Amendment they assure themselves.

Unfortunately, this Constitutional protection is not the comfort it might seem to be. The Supreme Court long ago decided that the 14th Amendment did not protect immigrants coming to the United States from discrimination that ordinarily would be illegal under the 14th Amendment. If Congress passed a law barring Muslim immigrants and the president signed it, the Supreme Court might well uphold it.

To understand why this seeming contradiction of American values could be legal, we have to go back to the Chinese Exclusion Act cases of the late 1800s. Many Americans believe that these cases, upholding racial discrimination, have been overturned. They have not been. While the Chinese Exclusion Act was repealed, the cases that allowed it to go into effect are still “good case law.” These cases are still relied on by the courts and they are taught in law schools as the foundation of immigration law.

I have written on this subject several times and I think that revisiting the dangerous Chinese Exclusion cases is necessary to understand why disgusting religious discrimination is in the air.

Chae Chan Ping was a Chinese immigrant who had lived legally in the U.S. for a decade. He had wanted to travel to visit China, and according to law he obtained the 19th Century version of a “green card” allowing him to come back in. While he was in China, Congress changed the law and said that even though he had permission to travel abroad and would not have left if he thought he could not come back, he, along with many other Chinese could not re-enter the U.S. His case went to the Supreme Court. This Chinese Exclusion Act was intended to keep Chae Chan Ping and those like him out of the U.S.

In its decision, the Supreme Court was in the difficult position of trying to figure out what authority Congress had for even making an immigration law. The U.S. is a country of limited government, which means that unless a power is given by the Constitution, that power does not exist in the Federal government. And the power to restrict immigration was nowhere mentioned in the Constitution.

In fact, the Constitution seemed in many ways to contradict the intent of the Chinese Exclusion Acts, which barred Ping from returning. For example there was the due process clause. Had Ping received due process? He had followed the law allowing him to visit his country, and yet an important right, the right to live in the U.S., had been taken away through no fault of his own.

The 14th Amendment had been passed just two decades earlier. It seemed to prohibit the sort of race-based discrimination inherent in a law, which barred Chinese but not European immigrants from returning lawfully to the U.S.
There was also the provision in the Constitution requiring respect for treaties made with foreign countries. The U.S. had a treaty with China allowing for legal immigration to our country. In fact, the original treaty recognized the “inherent and inalienable right of man to change his home and allegiance”. This would be a radical statement today, but it represented U.S. opinion in the 1860s.

The Supreme Court disregarded the lack of clear Constitutional authority for Congress to even make immigration laws. In fact, it dismissed all Constitutional arguments against race-based immigration laws, saying that Congress’ power to make immigration laws is not “open to controversy”. Of course that power was just what poor Mr. Chae Chan Ping was trying to controvert.

In its decision, the Court talks about other powers that Congress has, such as the power to declare war. Unfortunately for the demands of logic, all the powers that the Court cites are powers clearly delegated to Congress by the Constitution. And, strangely, the Court locates the immigration power in the powers that King George had at the time of the Revolution! Boy, wouldn’t the Founding Fathers be shocked to hear that according to the Court, Congress had the powers of the King even if those powers were not given to Congress by our founding document?

The Supreme Court concluded its blanket denial of rights to aliens by saying that “whatever license [that “green card” they had been issued by the U.S.] Chinese laborers may have obtained…to return to the United States…is held at the will of the government, revocable at any time…”. In other words, the “green cards” were not worth the paper they were printed on.

Although the Chinese Exclusion Act led to a fall in the number of Chinese living in the U.S., it still was not enough for those hoping to prevent the creation of multiracial country. In 1892 the Chinese Deportation Act was passed. This law authorized the deportation of Chinese immigrants unless they could produce an affidavit from a White man that they were in the country legally.

Fong Yue Ting was a Chinese workingman who had lived most of his adult life in the United States. He was arrested because he could not get a White man to sign an affidavit saying he was here legally. He had a number of witnesses willing to testify on his behalf, but they were not allowed to speak because, according to the Supreme Court, they were of the “Chinese race”. In its decision in this case, the Supreme Court noted that Fong Yue Ting had convinced the lower court judge that he was here legally, but that that finding of fact had no weight because White people had not supplied the evidence.

In its decision, the Supreme Court first criticized the immigrant for not “taking any steps” towards becoming a citizen in the many years he lived here. Of course, it was illegal for Chinese immigrants to become citizens and would remain so until World War II. Other Asian immigrants only got the ability to apply for citizenship in the 1950s, within the lifetimes of some readers of this blog. So the Supreme Court was perhaps mocking the alien awaiting deportation, or trying to drain public sympathy for him by implying that his supposed inaction left him incarcerated and on the verge of expulsion.

The Court ratified Congress in its power not only to exclude aliens from entering the U.S., but also to round up and deport them. Even more frighteningly, it went beyond what even Congress had done and said that no Courts need ever review the actions of the President in implementing this harsh regime.

There were Supreme Court justices who disagreed with this stripping of all rights from immigrants. Justice Brewer, for example was horrified that the Court had said that immigrants could be deported without even a modicum of judicial review. He reminded them that deportation involved arrest, and imprisonment. It also deprives a person of the ability to earn a livelihood and frequently leads him to give up his property in the U.S. Doing this without the full protections of the Courts seemed to violate the most basic requirements of fairness.

A surprise dissent came from the Court’s Chief Justice Fuller, surprising because he had written the original Chinese Exclusion decision. He said that while Congress could keep people out of the U.S., that once they were here they enjoyed the same protections as anyone else. What could their right to own property or speak freely mean if they could be deported at any time at the whim of Congress?

So the arguments for a reasonable and constitutional policy on immigration were made. They were trumped by ignorant fear of other “races” and a pandering to a nearly hysterical West Coast White majority.

The Chinese Exclusion Cases have been referred to as the “Original Sin” that gave rise to American immigration law. Because the decisions remove most judicial review from immigration cases (unless Congress specifically authorizes review), all sorts of prejudices can be indulged. Homosexuals can be banned from entering, people exercising their free speech rights can be deported, and immigration policy can be used for racial selection. America can wear its heart of darkness on its sleeve without the danger of the Constitution checking some truly rancid abuse.

Modern Americans cannot rely on the Supreme Court to protect them from the bigotry of a new Muslim Exclusion Act. The votes of Supreme Court justices may not save us from excluding a whole religion from coming here. Only the votes of the people can do that.

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