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Chae Chan Ping v. United States

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Chae Chan Ping v. United States
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
  1. The Scott Act is valid and with "nothing in the treaties between China and the United States to impair the validity".
  2. Immigration laws are an "incident of sovereignty" and exercise "sovereign powers delegated by the Constitution".
  3. Immigration laws are "conclusive upon the judiciary" and appeal to the political branches "lies its only remedy".
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 reentry from abroad of Chinese laborers in the United States.[1]

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 reentry bar 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 both in the broad judicial deference given and role of the case in forming the plenary power and consular nonreviewability doctrines in immigration and nationality law.[4][5]

Background

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Chinese immigration and early treaties

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Beginning in 1849, with the 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] Later, between 1865 and 1869, the Central Pacific Railroad Company brought over many more Chinese immigrants to California to work as laborers on the construction of the first transcontinental railroad.[7] Chinese immigrants arriving in California during this time period were subject to widespread prejudice and discrimination, motivated by a variety of social, economic, and other factors.[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 highest state court 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] The Burlingame Treaty was ultimately unsuccessful, and the Angell Treaty of 1880 was later negotiated to limit Chinese immigration to the United States.[10][11]

Chinese Exclusion Act and Scott Act

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First page of the Chinese Exclusion Act, passed by Congress in 1882.[12]

Motivated primarily by economic anxiety and with its passage through Congress aided by rising anti-Chinese sentiment, the Chinese Exclusion Act of 1882 was "widely popular in the United States" at the time of its enactment.[13] It marked the first piece of legislation in the history of United States immigration and nationality law to impose a broad bar on the entry of a class of foreigners, and signaled the end to an era of mostly unrestricted immigration to the United States.[14]

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, to require evidence of lawful admission from an American consulate, and to mandate that Chinese immigrants departing the United States obtain reentry permits if they wished to return.[15]

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 the reentry of such immigrants to the United States and voided all prior reentry permits.[16][17]

Chae Chan Ping and lower court proceedings

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On June 2, 1887, Chae Chan Ping, a Chinese immigrant 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 of the next year, Congress passed the Scott Act of 1888, which voided all reentry permits and barred the reentry of Chinese immigrant laborers abroad, such as Ping. 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 officials of the United States Customs Service.[18]

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 that authorized the detention.[3] The case was heard two days later, on October 12, before Circuit Judges Ogden Hoffman Jr. and Lorenzo Sawyer. Hoffman and Sawyer were judges well-versed in immigration and nationality law, presiding over a large 19th-century "habeas corpus mill" in central California that entertained thousands of habeas corpus petitions, mostly filed by or on the behalf of Chinese immigrants.[19]

The cases of Chinese immigrants had an impact on judges Hoffman and Sawyer, who often showed sympathy toward Chinese immigrants, yet when required to apply the Scott Act on October 15, 1888, neither could deny 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."[20] Prior to 1952, habeas corpus was the only means to challenge immigration-related legal orders.[21]

Supreme Court

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Arguments

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Chae Chan Ping was represented by prominent lawyers in 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 the act deprived Ping of "life, liberty, or property, without due process of law" in violation of the Fifth Amendment since it was argued that Ping's certificate permitting his reentry had vested him with a property right that could not be "taken away by mere legislation."[22]

Arguing on behalf of the United States was the Solicitor General George Jenks. The State of California submitted an amicus curiae brief in favor of the United States position. The amicus brief was written by John F. Swift, whom 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, given this context, the government had complete power to bar admission not only of Ping but also any other foreigner or class of foreigners, regardless of background, and that such expansive foreign affairs powers were wholly within the purview of the federal government.[23]

Decision of the court

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

In a unanimous decision on May 13, 1889, authored by Justice Stephen Johnson Field, the Supreme Court held that the Scott Act of 1888 was constitutional; thus, Chae Chan Ping was excluded from reentry to the United States and removed to China.[2] Justice Field had once ruled, as Chief Justice of California, against the discriminatory, anti-Chinese Pigtail Ordinance, but had shifted his views after taking office on the Supreme Court, employing anti-immigration rhetoric in the majority opinion.[24] Early on, Field stated that nothing in any United States treaty with China was irreconcilable with the act, but even if it were, held that Congress could abrogate treaties with foreign nations.[25]

Then Field addressed the power of government over immigration and nationality law, holding for the court that only the federal government had such power.[25] Field drew heavily upon the language of the law of nations for the majority opinion's holding that the power to exclude foreigners is "[a]n incident of sovereignty...part of those sovereign powers delegated by the Constitution."[26] However, Field did not originate this conclusion for the court, as European nations had earlier relied upon similar grounds in justification of deportation.[27] Rather, Field reiterated for the court that foreign affairs powers, under the commerce, naturalization, offenses, and war clauses of the Constitution, implicating the law of nations, permitted wide-ranging immigration restrictions and were largely entrusted to the federal government.[28][29]

After addressing both questions concerning conflict of laws and separation of powers, Field stated broad judicial deference on the matter of immigration and nationality law, holding that such laws were "conclusive upon the judiciary."[30] In effect, this left to the American people, through Congress and the Presidency, the power over this area of law.[31] This deference, having roots tracing back to the Roman Empire and being reflected, by Founding Fathers such as Gouverneur Morris, during the debates over the Constitution, was first judicially established with Field in the majority opinion, before being further developed, over the course of later cases, into the plenary power and consular nonreviewability doctrines in immigration and nationality law.[32]

Subsequent developments

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Plenary power doctrine

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President John F. Kennedy, with his ambassadors in March 1961.

The decision in Chae Chan Ping is an important legal precedent, as the case laid the foundation for the plenary power doctrine. This doctrine holds that Congress and the President have exceptional power over immigration and nationality law, so much that its substance is mostly insulated from judicial review.[33] The result is "a domain where ordinary constitutional rules have never applied".[34] A related doctrine is consular nonreviewability, which holds that actions undertaken by consular officials are also largely insulated from judicial review.[35]

Later 19th century developments

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The foundations of the plenary power doctrine first set forth in Chae Chan Ping were further developed during 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 through reaffirming the core tenets of the case, which were that the federal government could restrict immigration and do so with little judicial review, and also establishing that even if such review were to happen, that the actions of an administrative officer "acting within powers expressly conferred by Congress, are due process of law".[36][37]

Nishimura Ekiu was followed up by Fong Yue Ting v. United States (1893), concerning whether deportation was a form of punishment warranting judicial scrutiny. The court held that deportation is not a form of punishment, but repatriation, so "the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application."[38][39]

The cases Nishimura Ekiu and Fong Yue Ting, which built upon and solidified Chae Chan Ping, were in turn developed in the cases Lem Moon Sing v. United States (1895) and Wong Wing v. United States (1896). Lem Moon Sing upheld legislation that codified the holding of administrative finality established in Nishimura Ekiu.[40] Wong Wing (1896) reaffirmed Fong Yue Ting, but the court held that an otherwise "infamous" punishment imposed alongside removal was still bound by the rules of criminal procedure.[41]

Later 20th century developments

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Kaoru Yamataya, c. 1906.

At the start of the 20th century, the Supreme Court began to moderate its broad interpretation of the plenary power doctrine, but did not abandon the plenary power doctrine itself. This shift appeared in Yamataya v. Fisher (1903), or the Japanese Immigrant Case, where the court reaffirmed earlier rulings but, for the first time, entertained limited judicial review of removal proceedings.[42] The decision was significant as it was also the first time the court entertained a procedural due process challenge.[43]

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.[44] By the time of Oceanic Steam Navigation Co. v. Stranahan (1909), the doctrine had become firmly entrenched, with the court declaring that “over no conceivable subject is the legislative power of Congress more complete."[45]

The doctrine reached its fullest scope during the 1950s, through a series of three decisions espousing near-total deference to the political branches. First was United States ex rel. Knauff v. Shaughnessy (1950), where the court held that immigration was a privilege, not a right, and reaffirmed both Chae Chan Ping and Nishimura Ekiu, stating:

"Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."[46]

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

Next was Harisiades v. Shaughnessy (1952), which upheld the removal of nine persons for having been members of the Communist Party USA and also reaffirmed Chae Chan Ping by 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."[47][48] Last was Shaughnessy v. United States ex rel. Mezei (1953), where the court gave its strongest statement of the plenary power doctrine, upheld a prolonged detention on Ellis Island, and reaffirmed Chae Chan Ping and Fong Yue Ting.[49][50]

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." [51][52] 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."[53][54] 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."[55][56] 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.[57]

Later 21st century developments

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Trump signing Executive Order 13769, or "Travel Ban 1.0."[58]

While Chae Chan Ping has been criticized for its discriminatory outcome, the deference given by the plenary power doctrine it first established has continued into the 21st century.[59] In Trump v. Hawaii (2018), law scholars called on the Supreme Court to “jettison" the doctrine.[60] Contrary to those calls, the court relied on the doctrine to uphold Presidential Proclamation 9645, or "Travel Ban 3.0", issued by President Donald Trump to restrict admission from several Muslim-majority countries.[61][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 spouse’s visa against a substantive due process challenge and reaffirmed earlier precedents, including United States ex rel. Knauff v. Shaughnessy (1950).[64]

See also

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References

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  1. ^ a b "Milestones in the History of U.S. Foreign Relations - Office of the Historian". United States Department of State. Archived from the original on 16 January 2025. Retrieved 28 February 2025.
  2. ^ a b c d Epps, Garrett (20 January 2018). "The Ghost of Chae Chan Ping". The Atlantic. Archived from the original on 3 April 2021. Retrieved 28 February 2025.
  3. ^ a b c d e Chin, G. J. (19 May 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.
  4. ^ Legendre, Ray (27 September 2017). "Rewriting Chae Chan Ping". Fordham Law News. Archived from the original on 13 May 2025. Retrieved 9 May 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 23 July 2022. Retrieved 1 March 2025.
  6. ^ "Chinese Immigrants - Conflict during the California Gold Rush". Santa Clara University Digital Exhibits. Archived from the original on 19 May 2025. Retrieved 19 May 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.
  8. ^ Curran, Joe (2 February 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 19 March 2020.
  9. ^ "Chinese Immigrants and the Gold Rush | American Experience | PBS". PBS. Archived from the original on 29 May 2025. Retrieved 19 May 2025.
  10. ^ 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 30 March 2025.
  11. ^ Scott, David (7 November 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.
  12. ^ Tracey, Liz (19 May 2022). "The Chinese Exclusion Act: Annotated". JSTOR Daily. Retrieved 24 April 2024.
  13. ^ 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), Working Paper Series, National Bureau of Economic Research, doi:10.3386/w33019, 33019, retrieved 19 May 2025
  14. ^ 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.
  15. ^ Lu, Alexander (2 June 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.
  16. ^ "Scott Act (1888)". Harpweek. Archived from the original on 10 January 2015. Retrieved 16 January 2015.
  17. ^ Hall, Kermit L. (1999). The Oxford Guide to United States Supreme Court Decisions. Oxford University Press, USA. p. 53. ISBN 9780195139242. Retrieved 16 January 2015.
  18. ^ Munshi, Sherally (Winter 2016). "Race, Geography, and Mobility" (PDF). Georgetown Immigration Law Review. 30 (2): 245–286. Archived from the original on 29 May 2025 – via SSRN.
  19. ^ 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.
  20. ^ 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.
  21. ^ 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 13 August 2021.
  22. ^ 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 26 February 2020.
  23. ^ 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. Archived from the original on 29 May 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').
  24. ^ 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 24 February 2023.
  25. ^ a b Martin, David (2015). "Why Immigration's Plenary Power Doctrine Endures". Oklahoma Law Review. 68 (1): 29. ISSN 2473-9111. Archived from the original on 27 February 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...
  26. ^ Erman, Sam (2023). "Status Manipulation in Chae Chan Ping v. United States". Michigan Law Review. 121 (6): 1091–1100. doi:10.36644/mlr.121.6.status. ISSN 0026-2234. Archived from the original on 7 February 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.
  27. ^ 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…In the late nineteenth century, European governments asserted a similar power to remove immigrants.
  28. ^ 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 18 August 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.
  29. ^ Natelson, Robert G. (13 November 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. Archived from the original on 29 May 2025. [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.
  30. ^ Fawwaz, Shoukfeh (25 October 2023). "Where the Law is Silent: Plenary Power & the "National Security" Constitution". Harvard Political Review. Archived from the original on 17 April 2025. Retrieved 20 May 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.'
  31. ^ 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. Archived from the original on 29 May 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.
  32. ^ Jake, Stuebner (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 13 January 2025. Retrieved 9 May 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.'
  33. ^ 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 12 August 2024.
  34. ^ Cox, Adam B. (2024). "The Invention of Immigration Exceptionalism" (PDF). Yale Law School. Archived from the original on 25 January 2025. Retrieved 1 March 2025.
  35. ^ Johnson, Kevin (18 February 2015). "Argument preview: The doctrine of consular non-reviewability historical relic or good law?". SCOTUSblog. Archived from the original on 25 May 2025. Retrieved 9 May 2025.
  36. ^ Wilson, Grant (24 May 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 19 August 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.
  37. ^ Nishimura Ekiu v. United States, 142 U.S. at 660
  38. ^ Donald L. Horowitz, Administrative Arrest Pending Deportation Proceedings, 12 Syracuse L. Rev. 184 (Winter 1960)
  39. ^ Fong Yue Ting v. United States, 149 U.S. at 713
  40. ^ 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.
  41. ^ Chacón, Jennifer (2007). "Unsecured Borders: Immigration Restrictions, Crime Control and National Security". 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.
  42. ^ 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.
  43. ^ 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.
  44. ^ Vile, John (1 January 2009). "United States ex rel. Turner v. Williams (1904)". Free Speech Center. Middle Tennessee State University. Archived from the original on 25 May 2025. Retrieved 25 May 2025. Justice Fuller cites government 'power of self preservation' in expelling anarchist.
  45. ^ Harrington, Ben (27 September 2017). "Overview of the Federal Government's Power to Exclude Aliens" (PDF). Congressional Research Service. Archived from the original on 29 May 2025. Retrieved 25 May 2025 – via University of North Texas.
  46. ^ Kagan, Michael (2015). "Plenary Power is Dead! Long Live Plenary Power". Michigan Law Review First Impressions. 114 (1): 21–30.
  47. ^ Vile, John (1 January 2009). "Harisiades v. Shaughnessy (1952)". Free Speech Center. Middle Tennessee State University. Archived from the original on 25 May 2025. Retrieved 25 May 2025.
  48. ^ Harisiades v. Shaughnessy, 342 U.S. at 589–590
  49. ^ 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. 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.'
  50. ^ Shaughnessy v. United States ex rel. Mezei, 345 U.S. at 210
  51. ^ Jack Wasserman, Reflections on the Constitutionality of the Immigration and Nationality Act, 1 Immgr. & Nat'lity L. Rev. 51 (1976)
  52. ^ Galvan v. Press, 347 U.S. at 531
  53. ^ Tandy, Thomas (2023). "Boutilier v. Immigration and Naturalization Service". EBSCO. Archived from the original on 29 May 2025. Retrieved 25 May 2025.
  54. ^ Boutilier v. Immigration and Naturalization Service, 387 U.S. at 124
  55. ^ Dutton, Nina; Walt, Walt (1 January 2009). "Kleindienst v. Mandel (1972)". Free Speech Center. Middle Tennessee State University. Retrieved 25 May 2025.
  56. ^ Kleindienst v. Mandel, 408 U.S. at 766
  57. ^ Evans, Alona (1977). "Fiallo v. Bell". American Journal of International Law. 71 (4): 783–784. doi:10.2307/2199590. ISSN 0002-9300. 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 Kleindienstv. Mandel, a First Amendment case.'
  58. ^ Ceremonial swearing in of General James Mattis as Defense Secretary. 27 January 2017. Archived from the original on 29 May 2025. Retrieved 26 May 2025 – via WLKY.
  59. ^ Nathan, Debbie (21 March 2025). "The Insidious Doctrine Fueling the Case Against Mahmoud Khalil". Boston Review. Archived from the original on 29 May 2025. Retrieved 25 May 2025.
  60. ^ Schlanger, Margo (14 July 2017). "Symposium: Could this be the end of plenary power?". SCOTUSblog. Archived from the original on 26 May 2025. Retrieved 25 May 2025.
  61. ^ Totenberg, Nina (26 June 2018). "In Big Win For White House, Supreme Court Upholds President Trump's Travel Ban". NPR. Archived from the original on 23 August 2024. Retrieved 26 May 2025.
  62. ^ Litman, Leah (26 June 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 10 March 2023. Retrieved 13 May 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 [Chae Chan Ping] and Fong Yue Ting to justify the idea that immigration is insulated from judicial review.
  63. ^ Hong, Kari (26 June 2020). "Opinion analysis: Court confirms limitations on federal review for asylum seekers". SCOTUSblog. Archived from the original on 26 May 2025. Retrieved 25 May 2025.
  64. ^ Blackman, Josh (23 June 2024). "Department of State v. Munoz: The Sleeper ConLaw Case of the Term". Reason (magazine). Archived from the original on 29 May 2025. Retrieved 25 May 2025.
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