From the Bookshelves: Critical Race Judgments (chapter on Chae Chan Ping by Rose Cuison Villazor) and Unaccompanied by Emily Ruehs-Navarro

The Michigan Law Review released its annual review of books issue. The issue includes numerous pieces on race and equality issues, including two squarely on immigration and citizenship issues. 

Critical Race Judgments: Rewritten US Court Opinions on Race and the Law (eds Bennett Capbers, Devon Carbado, Robin Lenhardt, Angela Onwauchi-Willig), aims to take alternative looks at famous Supreme Court decisions. Rose Cusion-Villazor contributes a rewritten opinion for Chae Chan Ping, the Supreme Court case upholding the Chinese Exclusion Act that lays the foundation for U.S. immigration law. In the actual case, Chae is a Chinese laborer who resides in the U.S. and temporarily visits China. Upon return, he is required to furnish a reentry certificate establishing his eligilbility to enter the U.S. Although he procured the reentry certificate before embarking on his trip, Congress enacted a statute voiding the certificate during his travels. The Supreme Court held that the denial was not an unconstitutional denial of due process because “[T]he United States, through the action of the legislative department, can exclude aliens from its territory” and that such actions are conclusive. In other words, Congress has plenary power over exclusion of noncitizens.

In Cuison-Villazor’s version of the opinion, the Supreme Court issues a narrower opinion by clearly stating Congress’ power to regulate immigration, such as the powers to provide for common defense, commerce with foreign nations, or a uniform naturalization process. This modest formulation may not have let Chae enter the U.S. per se, but it would have maintained the safeguard of Constitutional due process for noncitizens. Such a safeguard could have opened pathways of protection, such as the treatment permanent residence as the type of interest the government coud not arbitrarily or capricious extinguish without following fair procedures — particularly if the extinction is motivated by race. The court also could have specified Congress’ power to regulate immigration laws as a matter of preemption over contrary state laws.

The danger, Sam Erman explains in his review of Cuison-Villazor’s rewritten opinion (Status Manipulation in Chae Chan Ping v. US) is that an “exclusionary, illiberal and inegalitarian principle to U.S. constitutional doctrine” endured for more than a century in a series of cases excluding noncitizens of Asian descent. The case serves as precedent in modern cases closing the borders to Muslims, which the court approved as a matter of plenary power in Trump v. Hawaii. As Erman states (and Garrett Epps argued in the Atlantic):

Cuison-Villazor’s recasting of the facts of Chae Chan Ping demonstrates that Trump v. Hawaii was no tragic, unintended consequence. It was a reenactment.

Erman expounds on why the decision is problematic for reasons going beyond its tragic outcome. First, it violates numerous modes of Constitutional interpretation: it disregards Constitutional text, structure, history, and precedent. Second, it violates liberal norms of fairness and rejects the ideal of equality. Third, it insulates itself from the review of other branches — a core precept of U.S. democracy — hinting that its vast and abormal exertion of power instead extends from international law’s recognition of sovereignty. The accretion of illiberal power serves as an example of the Court engaging in “status manipulation” to recast federal violation of Chinese noncitizen rights as national self-defense, notwithstanding their permanent residence status.  The original opinion, Cuison Villazor’s rewritten opinion, and Erman’s nuanced analysis of their ongoing significance all bear a full read.

The second immigration-focused book featured in the Michigan Law Review books issue is Emily Ruehs-Navarro, Unaccompanied: the Plight of Immigrant Youth at the Border (2022). The book review is by Randi Mandelbaum.

MHC