by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University School of Law. Professor Gulasekaram teaches constitutional law and immigration law, and is co-author of The New Immigration Federalism (Cambridge Press, 2015).
Every semester in immigration law class, we begin by reading the Supreme Court cases from the late 1800’s that established the 
scope of federal immigration power. Those cases – dubbed the Chinese Exclusion Cases – upheld the constitutionality of federal laws that banned immigration of Chinese and made resident Chinese deportable unless they could show a certificate of residence or provide evidence of their residency, with the testimony of white witnesses. In those cases, the Court chose to defer to the judgment of the political branches and established the plenary federal power to exclude non-citizens. Such power shielded Congress’ outright racial and national-origin exclusions, and discriminatory deportation standards from judicial review. It was an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s.
After reading those foundational cases, I usually pose a hypothetical to my class asking whether a statute passed by present-day Congress that barred immigration from predominantly Muslim countries and which called for the prioritized deportation of immigrants from predominantly Muslim countries would be constitutional. In essence, the hypothetical is intended to query how we should understand the continued vitality of the Chinese Exclusion Cases and the principle of plenary federal power over immigration they enshrined. Almost every time we engage in the exercise, at least some students remark that such a statute could never be enacted today, based on how we’ve evolved as a pluralistic society.
Incredibly, as the past few weeks have shown, such blatant discrimination may not be just a theoretical exploration after all. Rather than rely on a fictional creation, I could have just quoted from the various proposals from state governors, presidential candidates, and members of Congress, first to ban all Syrian refugees, then to ban Syrian refugees who are Muslim, and more recently, by Donald Trump, to exclude all Muslims from entering the country.
There is no doubt that such statements from prominent officials and presidential candidates are corrosive. They affect the way we view those in our society who share that religious or national background, and provide fodder for those who mistakenly believe that the fight against terrorism and extremism is a war against all 1.6 billion Muslims (approximately 1/4th of the world’s population), many of whom are fleeing the same violence these proposals misguidedly intend to address.
But beyond the wisdom and desirability of these proposals, would they be constitutional? As I have written elsewhere, and as others contributors have argued on this blog, state-level opposition to Syrian refugees is not legally viable.
State governors cannot dictate our refugee policy, and are barred from discriminating against certain noncitizens on the basis of national origin or religion.
But what about proposals at the federal level that ban the admission of any Muslims or those applying from predominantly Muslim countries? For those unfamiliar with immigration law, these would seem to be easily resolved as well. One would think that straightforward application of constitutional provisions like the equal protection guarantee, the due process clause, and the First Amendment would quickly diffuse any such attempts. But, the reality is that the Court has never used these constitutional principles to limit federal admission and exclusion policy. As it turns out, the Chinese Exclusion Cases have never been overruled and, ostensibly, remain good law.
The eventual repeal of the Chinese Exclusion Acts and related laws came about because of political and diplomatic pressure at the time of the Second World War, not because the Constitution required Congress to do so. And, that was not the last time the federal government exercised its immigration authority in ways that flouted otherwise applicable constitutional norms. In Fiallo v. Bell (1977), the Supreme Court upheld an immigration law that discriminated on the basis of gender and marital status, denying immigration benefits to unmarried fathers but allowing them to unmarried mothers. Congress eventually repealed that provision as well, although, again, it was not required to do so.
But even more recently, in the wake of the September 11th terrorist attacks, the Department of Justice (and later the Department of Homeland Security) instituted the National Security Entry-Exit Registration (NSEERS) program, which included provisions requiring certain noncitizens from several Muslim countries (and North Korea), upon threat of severe penalties, to register with federal authorities, be subjected to heightened and continuing vetting standards, and inform authorities of their movements and travel. Several federal courts of appeal rejected challenges to the NSEERS program despite its clear racial, national-origin, and religious criteria. The program was eventually discontinued by DHS, but its legal affirmation suggests that a future presidential administration could reactivate it.
Indeed, beyond this jurisprudential background, the Immigration and Nationality Act also contains provisions that a future president (who shared the views of Mr. Trump or those opposing Syrian refugees) might rely upon to enact an outright ban on certain types of immigrants for at least some period of time. As Professor Michael Kagan points out in a recent blog post, section 212(f) of the INA allows the president to suspend immigration of specific groups of people, upon his finding that the admission of a particular group would be detrimental to national interests.
Whether the historical and legal legacy of the Chinese Exclusion Cases, recent enactments like NSEERS, or statutory provisions like 212(f) could be exercised to ban all Muslims remains an open question. But, the very fact that it remains open reveals a sobering reality: While it seems inconceivable that outlandish proposals, like Mr. Trump’s, could actually become law, and if they did, that courts would strike them down, such outcomes are by no means certain. That is what makes the thought-exercise I give to my students – and the recent rhetoric by politicians and would-be presidents – so chilling.
In response to this conclusion, some of my more optimistic students are quick to point out footnote 5 from the Fiallo case. There, despite reaffirming Congress’ outright gender and marital discrimination, the Court felt compelled to leave open the possibility that some immigration policies might be so beyond the pale as to require judicial review: “Our cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens…”. Would an odious proposal such as the blanket exclusion of an entire religious group finally trigger this judicial responsibility? Even broader, would a proposal so tinged with religious and racial antipathy finally push the Court to overrule the Chinese Exclusion Cases? Given the evolution of constitutional standards of equal protection, due process, and First Amendment principles over the past several decades in areas outside of immigration law, one would certainly hope so.
Ultimately, however, the only dependable assurance against a return to racial, national, or religious discrimination in immigration policy lies not in constitutional jurisprudence, but rather in our ability to ensure that such regressive proposals and harmful discrimination fall outside the boundaries of realistic and acceptable political debate. But, as Mr. Trump and other candidates and officials remind us, those limits are precarious, and can be opportunistically transgressed by anyone willing to capitalize on the relevant anti-immigrant hysteria of the day. In the end, many predict that Mr. Trump’s campaign will lose out, as will his broadly condemned proposals and anti-immigrant demagoguery. But, this recent galvanization of anti-Muslim sentiment should remind those who believe in an equal and pluralistic society that we must proactively create the constitutional culture we aspire to maintain.