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an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s.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.
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.