Chae Chan Ping v. United States

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Chae Chan Ping v. United States
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued March 28–29, 1889
Decided May 13, 1889
Full case nameChae Chan Ping v. United States
Citations130 U.S. 581 ( more )
9 S. Ct. 623; 32 L. Ed. 1068; 1889 U.S. LEXIS 1778
Case history
PriorAppeal from the Circuit Court of the United States for the Northern District of California
Holding
The Scott Act of 1888 is valid; immigration and nationality laws can abrogate conflicting treaties, are within federal power, and are owed judicial deference.
Court membership
Chief Justice
Melville Fuller
Associate Justices
Samuel F. Miller  · Stephen J. Field
Joseph P. Bradley  · John M. Harlan
Horace Gray  · Samuel Blatchford
Lucius Q. C. Lamar II
Case opinion
MajorityField, joined by unanimous
Laws applied
U.S. Const. Art. III and Scott Act of 1888

Chae Chan Ping v. United States, 130 U.S. 581 (1889), or the Chinese Exclusion Case, is a landmark decision of the Supreme Court of the United States that upheld the constitutionality of the Scott Act of 1888, a follow-up to the Chinese Exclusion Act. The Scott Act barred Chinese laborers from reentry to the United States. [1]

Contents

The case arose concerning Chae Chan Ping, a Chinese laborer who moved to the United States in 1875, legally resided in San Francisco for over a decade, and whose return voyage from a trip to British Hong Kong was pending when the Scott Act became effective. [2] Ping's legal challenge to the prohibition on reentry was aided by Chinese immigrant groups and advocated on his behalf by an elite "dream team" of lawyers. [3]

The case is viewed as "the grandfather of immigration law cases" and is significant in the broad judicial deference given to the executive and legislative branches of the federal government, as well as precedent for the plenary power and consular nonreviewability doctrines in immigration and nationality law. [4] [5]

Background

Chinese immigration and early treaties

Beginning with the 1849 discovery of gold at Sutter's Mill, many people emigrated from China to the United States to take part in the California Gold Rush. In 1850, there were around 800 Chinese immigrants living in California, yet by 1852, that population had increased to roughly 20,000. [6] Between 1865 and 1869, the Central Pacific Railroad Company brought many more Chinese immigrants to California to construct the first transcontinental railroad. [7] Chinese immigrants in California during this period were subject to widespread prejudice and discrimination. [8] In 1852, the California legislature levied a discriminatory tax on Chinese miners, the second such tax levied within two years, and in 1854, the Supreme Court of California ruled that the testimony of Chinese people was inadmissible in court. [9]

In 1868, the United States and China negotiated the Burlingame Treaty. The terms of this treaty declared formal comity between the two nations, granted China most-favored-nation trade status, incentivized Chinese immigration to the United States, and conferred some bilateral immigration benefits to nationals of either nation. [1] In response to anti-immigrant hostility, the Angell Treaty of 1880 was later negotiated to limit the immigration of Chinese laborers to the United States. [10] [11] [12]

Chinese Exclusion Act and Scott Act

First page of the Chinese Exclusion Act, passed by Congress in 1882 Chineseexclusionact.JPG
First page of the Chinese Exclusion Act, passed by Congress in 1882

Primarily motivated by economic anxiety, Congress passed the Chinese Exclusion Act of 1882, which was "widely popular across political parties" at the time of its enactment. [14] It was the first piece of legislation in the history of immigration and nationality law in the United States to broadly limit entry by a particular class of foreigners, signaling the end of otherwise largely unrestricted immigration to the United States. [15]

At first, enforcement of the Chinese Exclusion Act proved cumbersome, and federal court rulings narrowed its scope. The act initially barred entry only on the basis of Chinese nationality and grandfathered previously admitted Chinese immigrants, which led some new immigrants to forge evidence of prior lawful entry. In 1884, Congress amended the act to apply on the basis of Chinese ethnicity rather than nationality, require evidence of lawful admission from an American consulate, and mandate that Chinese immigrants departing the United States obtain reentry permits if they wished to return. [16]

Following instances of violent attacks in the United States against Chinese immigrants between 1885 and 1887, such as the Rock Springs Massacre and Hells Canyon Massacre, the Chinese government sought to limit the emigration of laborers from China. While the Chinese government was in the midst of new treaty negotiations, the United States Congress passed the Scott Act of 1888, which barred reentry of such immigrants to the United States and voided all prior reentry permits. [17] [18]

Chae Chan Ping and lower court proceedings

On June 2, 1887, Chae Chan Ping (simplified Chinese :柴禅平; traditional Chinese :柴禪平; pinyin :Chái Chánpíng), a Chinese laborer who had resided in San Francisco since 1875, departed for British Hong Kong aboard the SS Belgic . Prior to leaving the United States, he obtained a reentry permit under the provisions of the Chinese Exclusion Act, as amended in 1884, which required such documentation to secure reentry for outbound Chinese immigrants. At the time he departed, his return to the United States would have been lawful. [2] During his absence, on October 1, 1888, Congress passed the Scott Act, which voided all reentry permits and barred the reentry of Chinese laborers abroad. Unaware of the change, Ping arrived six days later on October 7, 1888. He attempted to reenter the United States at the port of San Francisco but was detained by the United States Customs Service. [19]

On October 10, 1888, a petition for a writ of habeas corpus was filed on behalf of Ping, challenging both the legality of his detention and the constitutionality of the Scott Act. [3] Prior to the Immigration and Nationality Act of 1952, habeas corpus was the only means to challenge immigration-related legal orders. [20] The case was heard two days later before Circuit Judges Ogden Hoffman Jr. and Lorenzo Sawyer. The pair were well-versed in immigration and nationality law, presiding over a large 19th-century "habeas corpus mill" in California that entertained thousands of such cases, mainly concerning Chinese immigrants. [21] The cases of Chinese immigrants had an impact on judges Hoffman and Sawyer, who often showed sympathy toward Chinese immigrants. [22] Nonetheless, when required to apply the Scott Act on October 15, 1888, both agreed that the act barred the reentry of Ping, and "Sawyer went out of his way to explain that the decision he and Hoffman reached did not represent a capitulation to popular prejudice." [21]

Supreme Court

Arguments

Chae Chan Ping was represented by prominent lawyers of the 1800s, including George Hoadly, James C. Carter, and Thomas S. Riordan, all of whom had previously won cases before the federal judiciary which resulted in outcomes favorable to Chinese immigrants. [3] Despite his lower socioeconomic status as a day laborer, Ping's high-quality "dream team" legal counsel was made possible through Chinese American benevolent societies which sought to use him as a test case to challenge Chinese exclusion. [2] Lawyers for Ping argued that the Scott Act violated the guarantees set forth in the Burlingame Treaty. [3] Further, they argued that Ping's reentry permit had vested him with a property right that could not be "taken away by mere legislation", so the act had deprived Ping of "life, liberty, or property, without due process of law" in violation of the Fifth Amendment. [23]

Arguing on behalf of the United States was Solicitor General George Jenks. The State of California submitted an amicus curiae brief in favor of the federal government. The amicus brief was written by John Franklin Swift, who nine years earlier had negotiated the Angell Treaty of 1880. [3] Lawyers for the United States framed the case in the context of the law of nations and as part of a larger foreign affairs dispute with the Chinese government. They argued that the federal government had the complete power to bar admission of Ping and any other foreigner or class of foreigners, regardless of background. It was further argued that power over foreign affairs was an exclusively federal matter. [24]

Decision

Justice Field, author of the opinion Stephen Johnson Field, photo half length seated, 1875.jpg
Justice Field, author of the opinion

In a unanimous decision delivered on May 13, 1889, Associate Justice Stephen Johnson Field held that the Scott Act of 1888 was constitutional; thus, Chae Chan Ping was barred from reentry to the United States and removed to China. [2] Justice Field had once ruled, sitting by designation upon a federal district court, against the discriminatory, anti-Chinese Pigtail Ordinance, but he later shifted his views, employing anti-immigration rhetoric in the majority opinion. [25] First, Field addressed whether there was a conflict of laws with the act, holding that Congress had properly abrogated any conflicting treaties. [26]

Next, Field addressed the power of government over immigration and nationality law, holding that only the federal government had such power. [27] Field drew heavily upon accounts of the law of nations to hold that the power to exclude foreigners is "[a]n incident of sovereignty...part of those sovereign powers delegated by the Constitution." [28] These accounts were not unique to American law and had been drawn upon earlier by other nations. [29] Field also noted that foreign affairs powers, under the commerce, naturalization, define and punish, and war clauses of the Constitution, permitted immigration restrictions by the federal government. [30] [31]

After addressing both questions concerning conflict of laws and separation of powers, Field recognized broad judicial deference on the matter of immigration and nationality law, holding that such laws were "conclusive upon the judiciary." [32] In effect, Field left this area of law to popular sovereignty through Congress and the Presidency. [33] This deference traces back to the Roman Empire and was embraced by Founding Fathers such as Gouverneur Morris during the debates over the Constitution. The precedent of this case was subsequently developed into the plenary power and consular nonreviewability doctrines of immigration and nationality law. [34]

Subsequent developments

Plenary power doctrine

President Kennedy with his ambassadors in March 1961 JFK with Ambassadors March1961.jpg
President Kennedy with his ambassadors in March 1961

The decision in Chae Chan Ping is a foundational legal precedent for the plenary power doctrine. This doctrine holds that Congress and the President have exclusive power over immigration and nationality law, so judicial review is limited. [35] The result is "a domain where ordinary constitutional rules have never applied". [36] Consular nonreviewability is a related doctrine that limits judicial review of consular action. [37]

19th century developments

The doctrinal foundation set forth in Chae Chan Ping was further developed by Supreme Court decisions in the 1890s, including Nishimura Ekiu v. United States (1892) and Fong Yue Ting v. United States (1893). The decision in Nishimura Ekiu built upon Chae Chan Ping both by reaffirming the federal government's power to restrict immigration and by establishing that in judicial review of immigration and nationality law, the "decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law". [38] [39] Fong Yue Ting held that removal is repatriation, not a punishment, and limited the constitutional applicability of jury trial rights, protections from unreasonable searches and seizures, and protections from cruel and unusual punishments in removal proceedings. [40]

Lem Moon Sing v. United States (1895) and Wong Wing v. United States (1896) reinforced Nishimura Ekiu and Fong Yue Ting. Lem Moon Sing upheld legislation codifying the finality established in Nishimura Ekiu. [41] Wong Wing reaffirmed Fong Yue Ting, but the court held that an otherwise "infamous" punishment imposed alongside removal was still bound by criminal procedure. [42]

20th century developments

Kaoru Yamataya, c. 1906 KaoruYamataya.jpg
Kaoru Yamataya, c. 1906

At the start of the 20th century, the Supreme Court began moderating its interpretation of the plenary power doctrine, though it did not entirely abandon the doctrine. This shift appeared in Yamataya v. Fisher (1903), or the Japanese Immigrant Case, where the court reaffirmed earlier rulings while providing the first instance of judicial review of procedural due process challenges to removal proceedings. [43] [44]

The court expanded on this reasoning in United States ex rel. Turner v. Williams (1904), where John Turner challenged his exclusion under the Anarchist Exclusion Act. While the court entertained his procedural due process claim, it declined First Amendment review, relying on the plenary power doctrine. [45] By the time of Oceanic Steam Navigation Co. v. Stranahan (1909), the doctrine had become firmly entrenched, with the court holding: "[O]ver no conceivable subject is the legislative power of Congress more complete." [46] [47]

The doctrine reached its fullest scope during the 1950s, through a series of three decisions espousing near-total deference to the political branches. First, the Supreme Court held in United States ex rel. Knauff v. Shaughnessy (1950) that immigration was a privilege, and reaffirmed Nishimura Ekiu, stating:

"Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." [48]

— United States ex rel. Knauff v. Shaughnessy, 338 U.S. at 544

Second, Harisiades v. Shaughnessy (1952) upheld the removal of nine people over their Communist Party USA membership by applying a highly deferential standard of review, stating that immigration and nationality law is "so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." [49] [50] Third, in Shaughnessy v. United States ex rel. Mezei (1953), the Supreme Court delivered its strongest statement of the plenary power doctrine, upheld a prolonged detention on Ellis Island, and reaffirmed Chae Chan Ping. [51]

The court continued to apply the plenary power doctrine throughout the latter half of the 20th century. In Galvan v. Press (1954), it rejected a substantive due process challenge to the removal of a Mexican national who had lived in the United States for thirty-six years, holding that "the slate is not clean" and that "there is not merely a page of history, but a whole volume." [52] [53] In Boutilier v. Immigration and Naturalization Service (1967), the court upheld the removal of a gay man, citing Chae Chan Ping in stating that "Congress has plenary power." [54] [55] In Kleindienst v. Mandel (1972), the court upheld the denial of a visa to a Marxist journalist, stating that since Chae Chan Ping, "the general reaffirmations of this principle have been legion." [56] [57] In Fiallo v. Bell (1977), the court relied on the plenary power doctrine established by Chae Chan Ping to reject an equal protection challenge to an immigration and nationality law favoring mothers over fathers of illegitimate children in visa sponsorship. [58]

21st century developments

President Trump signing Executive Order 13769, a predecessor to Presidential Proclamation 9645 Trump signing order January 27.jpg
President Trump signing Executive Order 13769, a predecessor to Presidential Proclamation 9645

While Chae Chan Ping has been criticized for its discriminatory outcome, judicial deference in immigration and nationality law has continued into the 21st century. [60] In Trump v. Hawaii (2018), Margo Schlanger called on the Supreme Court to "jettison" the doctrine. [61] Contrary to that call, the court relied on the doctrine to uphold Presidential Proclamation 9645, issued by President Trump to bar admission from several Muslim-majority countries. [62]

In Department of Homeland Security v. Thuraissigiam (2020), the court recited precedents from the 1891 to 1952 "finality era" to uphold the jurisdiction stripping provisions of the expedited removal system against a Suspension Clause challenge. [63] In Department of State v. Muñoz (2024), the court upheld the denial of a spousal visa against a substantive due process challenge and reaffirmed plenary power doctrine precedents, including Knauff. [64]

See also

References

  1. 1 2 "Milestones in the History of U.S. Foreign Relations - Office of the Historian". United States Department of State . Archived from the original on January 16, 2025. Retrieved February 28, 2025.
  2. 1 2 3 4 Epps, Garrett (January 20, 2018). "The Ghost of Chae Chan Ping". The Atlantic. Archived from the original on April 3, 2021. Retrieved February 28, 2025.
  3. 1 2 3 4 5 Chin, G. J. (May 19, 2005). "Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power". University of Arizona James E. Rogers College of Law Legal Studies Research Paper Series. S2CID   155993909.
  4. ↑ Legendre, Ray (September 27, 2017). "Rewriting Chae Chan Ping". Fordham Law News. Archived from the original on May 13, 2025. Retrieved May 9, 2025.
  5. ↑ Schmitt, Desiree (2019). "The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisitied" (PDF). Georgetown University . Archived from the original on July 23, 2022. Retrieved March 1, 2025.
  6. ↑ "Chinese Immigrants - Conflict during the California Gold Rush". Santa Clara University Digital Exhibits. Archived from the original on May 19, 2025. Retrieved May 19, 2025.
  7. ↑ Kraus, George (1969). "Chinese Laborers and the Construction of the Central Pacific" . Utah Historical Quarterly. 37 (1): 41–57. doi:10.2307/45058853. ISSN   0042-143X. JSTOR   45058853.
  8. ↑ Curran, Joe (February 2, 2018). "The Power of Biases: Anti-Chinese Attitudes in California's Gold Mines". Historical Perspectives: Santa Clara University Undergraduate Journal of History, Series II. 22 (1). Archived from the original on March 19, 2020.
  9. ↑ "Chinese Immigrants and the Gold Rush". PBS . American Experience. Archived from the original on May 29, 2025. Retrieved May 19, 2025.
  10. ↑ Benson, Alvin (2023). "Angell Treaty of 1880". EBSCO . Archived from the original on July 19, 2025. Retrieved July 19, 2025. Signed on November 17, 1880, the [Angell] treaty sought to regulate rather than completely prohibit Chinese immigration, reflecting a period of heightened tension regarding labor and cultural assimilation.
  11. ↑ Banks, Angela (2010). "The Trouble with Treaties: Immigration and Judicial Law". 84 St. John's Law Review 1219-1271 (2010). Archived from the original on September 29, 2015.
  12. ↑ Scott, David (November 7, 2008). China and the International System, 1840-1949: Power, Presence, and Perceptions in a Century of Humiliation. State University of New York Press. ISBN   9780791477427.
  13. ↑ Tracey, Liz (May 19, 2022). "The Chinese Exclusion Act: Annotated". JSTOR Daily. Retrieved April 24, 2024.
  14. ↑ Long, Joe; Medici, Carlo; Qian, Nancy; Tabellini, Marco (October 2024), The Impact of the Chinese Exclusion Act on the Economic Development of the Western U.S. (Working Paper), National Bureau of Economic Research, doi:10.3386/w33019, 33019, retrieved May 19, 2025
  15. ↑ Seo, Jungkun (2011). "Wedge-Issue Dynamics and Party Position Shifts: Chinese Exclusion Debates in the Post-Reconstruction US Congress, 1879-1882" . Party Politics. 17 (6): 823–847. doi:10.1177/1354068810376184. ISSN   1354-0688.
  16. ↑ Lu, Alexander (June 2, 2010). "Litigation and Subterfuge: Chinese Immigrant Mobilization During the Chinese Exclusion Era" . Sociological Spectrum. 30 (4): 403–432. doi:10.1080/02732171003641024. ISSN   0273-2173.
  17. ↑ "Scott Act (1888)". Harpweek. Archived from the original on January 10, 2015. Retrieved January 16, 2015.
  18. ↑ Hall, Kermit L. (1999). The Oxford Guide to United States Supreme Court Decisions . Oxford University Press, USA. p.  53. ISBN   9780195139242 . Retrieved January 16, 2015.
  19. ↑ Munshi, Sherally (Winter 2016). "Race, Geography, and Mobility" (PDF). Georgetown Immigration Law Review. 30 (2): 245–286. SSRN   2908139. Archived from the original on May 29, 2025 – via SSRN.
  20. ↑ Neuman, Gerald (2006). "On the Adequacy of Direct Review After the REAL ID Act of 2005". NYLS Law Review. 51 (1): 133–158. ISSN   0145-448X. Archived from the original on August 13, 2021.
  21. 1 2 Fritz, Christian G. (1988). "A Nineteenth Century 'Habeas Corpus Mill': The Chinese Before the Federal Courts in California" . American Journal of Legal History. 32 (4): 347–372. doi:10.2307/845742. ISSN   0002-9319. JSTOR   845742. SSRN   2167395.
  22. ↑ Przybyszewski, Linda (1988). "Judge Lorenzo Sawyer and the Chinese: Civil Rights Decisions in the Ninth Circuit". Western Legal History: The Journal of the Ninth Judicial Circuit Historical Society. 1 (1): 23–56.
  23. ↑ Villazor, Rose Cuison (2015). "Chae Chan Ping v. United States: Immigration as Property". Oklahoma Law Review. 68 (1): 137. ISSN   2473-9111. Archived from the original on February 26, 2020.
  24. ↑ Ayers, Ava (Fall 2004). "International Law as a Tool of Constitutional Interpretation in the Early Immigration Power Cases" (PDF). Georgetown Immigration Law Review. 19 (1): 125–154. SSRN   2111627. Archived from the original on May 29, 2025 – via SSRN. The third brief for the government includes a section on international law, which seems to be included in support of the structural argument about the national powers being granted to Congress: 'The whole tenor of the Constitution is that the United States is a nation, and, as to foreign nations and their subjects, is endowed with full sovereign powers.' The following section is entitled 'The law of nations.' Its conclusion, not surprisingly, is that '[i]ntemational law fully establishes the right of a nation to exclude foreigners from its domain." For authority, it cites Chief Justice Marshall in The Schooner Exchange ('The jurisdiction of the nation within its own territory is necessarily exclusive and absolute') and Vattel's Law of Nations ('the lord of the territory may, whenever he thinks proper, forbid its being entered').
  25. ↑ Romero, Victor (2015). "Elusive Equality: Reflections on Justice Field's Opinions in Chae Chan Ping and Fong Yue Ting". Oklahoma Law Review. 68 (1): 165. ISSN   2473-9111. Archived from the original on February 24, 2023.
  26. ↑ Martin, David (January 1, 2015). "Why Immigration's Plenary Power Doctrine Endures". Oklahoma Law Review. 68 (1): 33. ISSN   2473-9111. Archived from the original on February 27, 2017. Clearly the statute [Scott Act of 1888] did violate the treaty, but Field, in his first reference to sovereignty, wrote that treaties and statutes are of equal rank, and in the case of a conflict, 'the last expression of the sovereign will must control.'
  27. ↑ Martin, David (2015). "Why Immigration's Plenary Power Doctrine Endures". Oklahoma Law Review. 68 (1): 29. ISSN   2473-9111. Archived from the original on February 27, 2017. Justice Field's opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem–structural reasoning that locates the immigration control power squarely in the federal government rather than the states...
  28. ↑ Erman, Sam (2023). "Status Manipulation in Chae Chan Ping v. United States". Michigan Law Review. 121 (6): 1095. doi:10.36644/mlr.121.6.status. ISSN   0026-2234. Archived from the original on February 7, 2024 – via University of Michigan. In classic international law accounts, sovereignty was the unlimited, unaccountable, and undivided power of the nation state within its territory and over its nationals...[S]overeignty and the law of nations was everywhere in the Court's decision.
  29. ↑ Hester, Torrie (2010). ""Protection, Not Punishment": Legislative and Judicial Formation of U.S. Deportation Policy, 1882–1904" . Journal of American Ethnic History. 30 (1): 11–36. doi:10.5406/jamerethnhist.30.1.0011. ISSN   0278-5927. The authority to exclude aliens, the Court found in Chae Chan Ping, is 'an incident of every independent nation. It is a part of its independence.' The Court did not invent the rationale that deportation was a power inherent in sovereignty, nor did it claim the power was uniquely American…
  30. ↑ Ludsin, Hallie (2022). "Frozen in Time: The Supreme Court's Outdated, Incoherent Jurisprudence on Congressional Plenary Power over Immigration". North Carolina Journal of International Law. 47 (3): 433. Archived from the original on August 18, 2022. Notably, the Constitution does not expressly grant the federal government wholesale foreign affairs power. The foreign affairs power, rather, appears to be an amalgamation of Congress's powers to 'regulate commerce with foreign nations, to define offenses against the law of nations, and to declare war'…One more provision rounds out constitutional support for federal immigration powers: the naturalization provision that grants the federal government the power to 'establish an uniform Rule of Naturalization,' or a law for granting naturalized citizenship.
  31. ↑ Natelson, Robert G. (November 13, 2022). "The Power to Restrict Immigration and the Original Meaning of the Constitution's Define and Punish Clause". British Journal of American Legal Studies. 11 (2): 209–236. doi: 10.2478/bjals-2022-0010 . [Founding era authorities on the law of nations, such as] Pufendorf, Barbeyac, Vattel, Martens, Blackstone, and—more obliquely, Grotius and Burlamaqui— all addressed limits on immigration when writing on the law of nations. These authors consistently recognized the prerogative of governments to impose immigration restrictions. That prerogative was qualified in cases of necessity (for example, a ship being driven by storm onto a foreign shore), and in the cases of exiles and fugitives. As to voluntary immigrants, however, all but Grotius—the earliest of the writers— recognized that the power to restrict was nearly absolute.
  32. ↑ Fawwaz, Shoukfeh (October 25, 2023). "Where the Law is Silent: Plenary Power & the 'National Security' Constitution". Harvard Political Review. Archived from the original on April 17, 2025. Retrieved May 20, 2025. The Court's opinion referenced the California legislature's resolution to Congress, which described an 'Oriental invasion' that 'was a menace to our civilization.' Justice Field downplayed the relevance of these racist intentions, emphasizing that 'This Court is not a censor of the morals of other departments of the government.' He wrote on behalf of a unanimous bench that if Congress 'considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … its determination is conclusive upon the judiciary.'
  33. ↑ Charles, Patrick (2010). "The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective" (PDF). Texas Review of Law & Politics. 15 (1): 61–122. ISSN   1098-4577. SSRN   1618976. Archived from the original on May 29, 2025 – via SSRN. However, the plenary power doctrine is firmly rooted in the Anglo-American legal tradition. It should be emphasized that the determination to expel or exclude foreigners, whether they have already lawfully settled or even begun the process of naturalization, is a political question and not a vested right absent congressional statutory acquiescence...It is an issue that can only be placed into this nation's political discourse, where it has always and rightfully been.
  34. ↑ Stuebner, Jake (2024). "Consular Nonreviewability After Department of State v. Munoz: Requiring Factual and Timely Explanations for Visa Denials" (PDF). Columbia Law Review. Archived from the original on January 13, 2025. Retrieved May 9, 2025. Stemming from 'ancient principles of the international law of nation-states,' '[t]he power to admit or exclude is a sovereign prerogative.' Indeed, the ability to 'regulate the flow of non-citizens entering the country . . . is an inherent power of any sovereign nation.' This idea traces as far back as the Roman Empire and 'received recognition during the Constitutional Convention.'
  35. ↑ Coutin, Susan; Richland, Justin; Fortin, Véronique (2014). "Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law". UC Irvine Law Review. 4 (1). ISSN   2327-4514. Archived from the original on August 12, 2024.
  36. ↑ Cox, Adam B. (2024). "The Invention of Immigration Exceptionalism" (PDF). Yale Law School . Archived from the original on January 25, 2025. Retrieved March 1, 2025.
  37. ↑ Johnson, Kevin (February 18, 2015). "Argument Preview: The Doctrine of Consular Non-Reviewability Historical Relic or Good Law?". SCOTUSblog. Archived from the original on May 25, 2025. Retrieved May 9, 2025.
  38. ↑ Wilson, Grant (May 24, 2019). "Unitary Theory, Consolidation of Presidential Authority, and the Breakdown of Constitutional Principles in Immigration Law". Immigration and Human Rights Law Review. 1 (2). ISSN   2644-092X. Archived from the original on August 19, 2022. Nishimura also established the idea that the judiciary could not overrule decisions rightfully made by the legislative and executive branches or their rightfully designated actors in regards to immigration on due process grounds.
  39. ↑ Nishimura Ekiu v. United States, 142 U.S. at 660
  40. ↑ Donald L. Horowitz, Administrative Arrest Pending Deportation Proceedings, 12 Syracuse L. Rev. 184 (Winter 1960)
  41. ↑ Hebard, Andrew (2013). "Law, Literature, and the "Situation" of Immigration" . Law, Culture and the Humanities. 9 (3): 443–455. doi:10.1177/1743872111416327. ISSN   1743-8721. Most importantly, by the turn of the century, administrative decisions concerning the Chinese were no longer open to judicial review. After Lem Moon Sing v. United States (1895), the courts concurred with legislation decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
  42. ↑ Chacón, Jennifer (2007). "Unsecured Borders: Immigration Restrictions, Crime Control and National Security" (PDF). Connecticut Law Review. 39 (5): 1827–1891. In addition to the somewhat malleable due process protections that apply to non-citizens in removal proceedings, the Court has also acknowledged the application of more clearly defined procedural protections for non-citizens in criminal proceedings. The Court's 1896 decision in Wong Wing rested on the premise that non-citizens are entitled to the same procedural rights as citizens where the imposition of 'infamous' punishment is concerned.
  43. ↑ Rosenfeld, Jim (1995). "Deportation Proceedings and Due Process of Law". Columbia Human Rights Law Review. 26 (3): 713–750. [I]n Yamataya v. Fisher, the Court acknowledged plenary power over deportation but found that this did not place Congress beyond judicial due process review.
  44. ↑ Motomura, Hiroshi (1992). "The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights" . Columbia Law Review. 92 (7): 1625–1704. doi:10.2307/1123043. ISSN   0010-1958. JSTOR   1123043.
  45. ↑ Vile, John (January 1, 2009). "United States ex rel. Turner v. Williams (1904)". Free Speech Center. Middle Tennessee State University. Archived from the original on May 25, 2025. Retrieved May 25, 2025. Justice Fuller cites government 'power of self preservation' in expelling anarchist.
  46. ↑ Harrington, Ben (September 27, 2017). "Overview of the Federal Government's Power to Exclude Aliens" (PDF). Congressional Research Service. Archived from the original on May 29, 2025. Retrieved May 25, 2025– via University of North Texas.
  47. ↑ Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. at 340
  48. ↑ Kagan, Michael (September 1, 2015). "Plenary Power is Dead! Long Live Plenary Power". Michigan Law Review. 114 (1): 21. Archived from the original on March 20, 2020.
  49. ↑ Vile, John (January 1, 2009). "Harisiades v. Shaughnessy (1952)". Free Speech Center. Middle Tennessee State University. Archived from the original on May 25, 2025. Retrieved May 25, 2025.
  50. ↑ Harisiades v. Shaughnessy, 342 U.S. at 589–590
  51. ↑ Weisselberg, Charles D. (1995). "The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei" . University of Pennsylvania Law Review. 143 (4): 933–1034. doi:10.2307/3312552. ISSN   0041-9907. JSTOR   3312552. Clark's majority opinion stands as the Court's strongest statement of the plenary power doctrine and the entry fiction. Citing Chae Chan Ping and Knauff, the opinion states that the power to exclude aliens is a 'fundamental sovereign attribute' that is 'largely immune from judicial control.'
  52. ↑ Jack Wasserman, Reflections on the Constitutionality of the Immigration and Nationality Act, 1 Immgr. & Nat'lity L. Rev. 51 (1976)
  53. ↑ Galvan v. Press, 347 U.S. at 531
  54. ↑ Lewis, Thomas (2023). "Boutilier v. Immigration and Naturalization Service". EBSCO . Archived from the original on May 29, 2025. Retrieved May 25, 2025.
  55. ↑ Boutilier v. Immigration and Naturalization Service, 387 U.S. at 124
  56. ↑ Dutton, Nina; Huber, Walt (January 1, 2009). "Kleindienst v. Mandel (1972)". Free Speech Center. Middle Tennessee State University. Archived from the original on June 22, 2025. Retrieved May 25, 2025.
  57. ↑ Kleindienst v. Mandel, 408 U.S. at 766
  58. ↑ Evans, Alona (1977). "Fiallo v. Bell" . American Journal of International Law. 71 (4): 783. doi:10.2307/2199590. ISSN   0002-9300. JSTOR   2199590. Mr. Justice Powell pointed out that a number of decisions of the Supreme Court, from 1889 to the present, maintained the principle that congressional control over aliens was much broader than congressional power over citizens. In the opinion of the Court, the family situation raised by complainants did not warrant 'review [of] the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case.'
  59. ↑ Ceremonial swearing in of General James Mattis as Defense Secretary. January 27, 2017. Archived from the original on May 29, 2025. Retrieved May 26, 2025– via WLKY.
  60. ↑ Nathan, Debbie (March 21, 2025). "The Insidious Doctrine Fueling the Case Against Mahmoud Khalil". Boston Review. Archived from the original on May 29, 2025. Retrieved May 25, 2025.
  61. ↑ Schlanger, Margo (July 14, 2017). "Symposium: Could This Be the End of Plenary Power?". SCOTUSblog. Archived from the original on May 26, 2025. Retrieved May 25, 2025.
  62. ↑ Litman, Leah (June 26, 2018). "Opinion | Unchecked Power Is Still Dangerous No Matter What the Court Says". The New York Times . ISSN   0362-4331. Archived from the original on March 10, 2023. Retrieved May 13, 2025. The section of the opinion [in Trump v. Hawaii] rejecting the plaintiffs' First Amendment claim began with an explanation about why the entry-ban case differs from other First Amendment challenges. The difference, the court said, is that 'the admission and exclusion of foreign nations is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' The court quoted a passage from a prior case [Mezei] that relied on both the Chinese Exclusion Case and Fong Yue Ting to justify the idea that immigration is insulated from judicial review.
  63. ↑ Hong, Kari (June 26, 2020). "Opinion Analysis: Court Confirms Limitations on Federal Review for Asylum Seekers". SCOTUSblog. Archived from the original on May 26, 2025. Retrieved May 25, 2025.
  64. ↑ Blackman, Josh (June 23, 2024). "Department of State v. Munoz: The Sleeper ConLaw Case of the Term". Reason . Archived from the original on May 29, 2025. Retrieved May 25, 2025.
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