Alienated

Immigrant Rights, the Constitution, and Equality in America

Victor C. Romero

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814776742
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

Throughout American history, the government has used U.S. citizenship and immigration law to protect privileged groups from less privileged ones, using citizenship as a “legitimate” proxy for otherwise invidious, and often unconstitutional, discrimination on the basis of race. While racial discrimination is rarely legally acceptable today, profiling on the basis of citizenship is still largely unchecked, and has in fact arguably increased in the wake of the September 11 terror attacks on the United States. In this thoughtful examination of the intersection between American immigration and constitutional law, Victor C. Romero draws our attention to a “constitutional immigration law paradox” that reserves certain rights for U.S. citizens only, while simultaneously purporting to treat all people fairly under constitutional law regardless of citizenship.

As a naturalized Filipino American, Romero brings an outsider's perspective to Alienated, forcing us to look at constitutional immigration law from the vantage point of people whose citizenship status is murky (either legally or from the viewpoint of other citizens and lawmakers), including foreign-born adoptees, undocumented immigrants, tourists, foreign students, and same-gender bi-national partners. Romero endorses an equality-based reading of the Constitution and advocates a new theoretical and practical approach that protects the individual rights of non-citizens without sacrificing their personhood.

1

Equality for All as a Constitutional Mandate (Noncitizens Included!)

In this brief chapter, I combine a traditional analysis of constitutional immigration law with the multidimensional approach I described earlier— merging personal narrative, other legal sources, and nonlegal sources— in support of my thesis that the best reading of the Constitution is one that maximizes parity between the U.S. citizen and noncitizen, regardless of the latter’s formal immigration status.

First Things First: Examining the Constitution’s Text

A traditional legal analysis of American “constitutional immigration law” would likely begin by asking to which government—federal or state—the Constitution grants power over immigration policy, which dictates the flow of noncitizens in and out of the United States. After all, the founding of the federal republic succeeded the establishment of the thirteen states, and it is therefore generally understood that the federal government is one of limited powers. By default, then, the individual states should have power over immigration unless the Constitution says otherwise.

One traditional approach to this dispute is to look at the text of the U.S. Constitution, which purports to allocate powers between these entities. Unfortunately, the word “immigration” appears nowhere in the Constitution.¹ The terms “naturalization,”² “commerce with foreign nations,”³ and the congressional power “to declare war”⁴ have all been raised as possible textual foundations for the federal immigration authority,⁵ although none specifically use the term. Immigration scholar Steve Legomsky has raised the question whether immigration might be a “necessary and proper”⁶ derivative of the federal government’s naturalization power.⁷

A Contextual Analysis of Precedent: The Noncitizen Outsiders (Shoved?) behind the Plenary Power Doctrine

In the absence of specific textual support, lawyers rely on judicial precedents to support constitutional claims. In that vein, the U.S. Supreme Court has long found the immigration power to reside in the federal government, and not among the states. Specifically, the Court has consistently affirmed, explicitly and implicitly, Congress’s power to enact legislation requiring the exclusion or expulsion of various noncitizens based on the federal legislature’s and executive’s best judgment as to the proper balance between these foreigners’ desire to remain as our guests and the nation’s interest in denying them access. At one level of logic and law, such judicial deference to the political branches makes sense. If Congress believes that a noncitizen poses a national security risk, then the Supreme Court should not stand in the way of the executive branch enforcing Congress’s conclusion arrived at for the benefit of the United States and its citizens.

But there are, of course, other sides to this story. Against the apparently logical exposition of constitutional text and precedent described above, we should examine the context in which the political branches chose to exclude or expel the noncitizens in those cases brought before the Supreme Court. A great many of them were brought by noncitizen plaintiffs who were societal outsiders, such as the turn-of-the-twentieth century Chinese in Chae Chan Ping⁸ and Fong Yue Ting,⁹ communist sympathizers in the 1950s trilogy of Knauff,¹⁰ Harisiades,¹¹ and Mezei,¹² and alleged terrorists of the 1990s in Reno v. AADC.¹³ These cases are worth a closer look.

The genesis of the plenary power doctrine lies in the infamous 1889 Chinese Exclusion Case entitled Chae Chan Ping v. United States.¹⁴ The Supreme Court upheld congressional revocation of entry permits to Chae Chan Ping, a Chinese laborer who had temporarily left the United States in reliance on these reentry documents. After recognizing that the power to exclude noncitizens is incidental to national sovereignty, the Court concluded that “[w]hatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure.”¹⁵ The Court further noted that it could not second-guess Congress’s decision to enact a race-based exclusionary policy, stating that such “determination is conclusive upon the judiciary.”¹⁶

Chae Chan Ping is an especially important case because just three years prior, the Court had recognized that the Chinese could avail themselves of the Constitution’s Equal Protection Clause to protect themselves against invidious racial discrimination. In Yick Wo v. Hopkins,¹⁷ the Court overturned the conviction of a Chinese national for violating a San Francisco safety ordinance regulating the operation of laundries. The evidence clearly showed that variances were granted to all but one of the non-Chinese operators, while all the Chinese-run laundries had been ordered closed.

Read together, Chae Chan Ping and Yick Wo indicate that the Court was willing to defer to legislative and executive action in the realm of immigration policy, but not outside it. Because Yick Wo focused on nonim-migration issues, the Court was free to develop the plenary power doctrine in immigration law as it saw fit. In its 1893 decision in Fong Yue Ting v. United States,¹⁸ the Court built upon the foundation laid in Chae Chan Ping by upholding a congressional statute requiring Chinese nationals (and only Chinese nationals)¹⁹ to register with the federal government or face deportation. While recognizing the constitutional limits placed on government conduct by cases such as Yick Wo, the Court quickly added that because “they continue to be aliens, … [the Chinese respondents] remain subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public interest.”²⁰

While these race-based exclusionary rules generally abated from the late 1800s through World War II,²¹ the 1950s saw the return of the plenary power doctrine in three decisions that squarely pitted individual claims to both procedural and substantive constitutional rights against Congress’s plenary power over immigration. This time, racial prejudice was not the underlying reason for individual exclusion; instead, the fear of communism drove congressional action.

In the first case, United States ex rel. Knauff v. Shaughnessy,²² the noncitizen wife of a U.S. citizen was barred entry into the United States based on classified information obtained by the government, which, it was later revealed, suggested that she had communist affiliations. Knauff argued before the Supreme Court that exclusion without a hearing compromised her due process rights. In rejecting this argument and reaffirming Congress’s plenary power over immigration matters, the Court issued a chilling pronouncement: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”²³ Even considering the country’s anticommunist mood at the time, the extent to which the Court was willing to defer to Congress in Knauff was noteworthy, if not surprising. Knauff, the noncitizen spouse of a U.S. citizen, only wanted an opportunity to be heard, yet the Court was unwilling to grant even that.

Nonetheless, supporters of individual rights could have taken solace in Knauff’s limited impact. First, Knauff did not endorse the abrogation of any substantive constitutional rights, only procedural ones. If the Knauff court had dealt with Knauff’s claim that she had been deprived of her First Amendment right to free speech, for example, it would have presumably given greater weight to that substantive claim than to her procedural assertion that she was not granted an opportunity to be heard. Indeed, after the Supreme Court rendered its decision, administrative hearings were held and eventually the Board of Immigration Appeals found Knauff admissible on the merits.²⁴ Second, the Knauff opinion upholding the denial of a hearing might arguably have applied only to first-time entrants to the United States. For instance, one might argue that a longtime resident of the United States who returns from a temporary trip abroad should be entitled to greater procedural rights than Knauff, a person seeking entry into the country for the first time.

However, in the three years following Knauff, the Court expanded Congress’s plenary power in two important cases. In Harisiades v. Shaughnessy,²⁵ the Court filled the Knauff gap between procedural and substantive rights by denying noncitizens’ claims on substantive constitutional law grounds. A year later, in Shaughnessy v. U.S. ex rel. Mezei,²⁶ the Court extended its Knauff holding to deny the procedural due process claim of a long-time U.S. resident seeking reentry.

In Harisiades, the Court approved the removal²⁷ of three former Communist Party members who were rendered deportable under a recently enacted congressional act. Passed after the petitioners had quit the Communist Party, the statute made deportable any individual who had ever advocated the violent overthrow of the U.S. government. The petitioners did not dispute the government’s assertion that the Communist Party adhered to that belief, and they were accordingly adjudged deportable. The petitioners’ citations of the Due Process Clause, the First Amendment, and the Ex Post Facto Clause notwithstanding, the Court upheld the law, finding violations of none of these three substantive constitutional provisions.²⁸

Harisiades thus appeared to preclude substantive constitutional rights claims left open by the Knauff Court’s procedural approach. After Harisiades, not only could Congress deny an individual noncitizen the right to a hearing, but it could also retroactively apply a new deportation law to remove a noncitizen whose affiliation with the offending organization had already ended! In language tracking that seen in other plenary power cases, the Harisiades Court justified this abrogation of the petitioner’s substantive rights by stating that it was not its role to formulate immigration policy, that this was the role of the political branches, and, therefore, any grievances arising out of such policy should be addressed to those bodies:

We think that, in the present state of the world, it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government’s power of deportation. However desirable world-wide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy… . Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.²⁹

Just as the Court extended the plenary power doctrine to reach substantive claims in Harisiades, it also broadened the Knauff holding in Mezei by curtailing procedural due process for a longtime U.S. resident.³⁰ Mezei, a U.S. resident for twenty-five years, was denied readmission into the country after leaving temporarily to visit his ailing mother in Romania. Upon his return, he was detained on Ellis Island as excludable, ostensibly for national security reasons, and therefore sought admission elsewhere. After he was denied entry in over a dozen countries, Mezei advised the INS that he would no longer seek to depart. He then challenged his confinement on Ellis Island without a hearing as a denial of due process.³¹

The District Court and Court of Appeals granted Mezei’s request for a hearing, perhaps signaling limits on Congress’s heretofore plenary power over immigration or, alternatively, the decline of the “red scare.”³² In addition, these decisions renewed the hope that some constitutional individual rights claims could survive Knauff and Harisiades.

However, upon appeal to the Supreme Court, Mezei followed precedent, and the Court overturned the lower courts’ decisions. After the Court recited the facts, its first statement was a reaffirmation of the plenary power of Congress followed by a citation of the four cases described above — Chae Chan Ping, Fong Yue Ting, Knauff, and Harisiades: “Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”³³ While acknowledging that departing noncitizens may avail themselves of procedural due process protections, the Court appeared to characterize Mezei not as a returning twenty-five-year resident, but as “an alien on the threshold of initial entry.”³⁴ As such, Knauff’s deferential standard of judicial review applied to the Attorney General’s actions here: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”³⁵ Despite the attempts by Justices Jackson and Black in dissents to distinguish Knauff by emphasizing that, unlike Knauff, Mezei was actually detained at Ellis Island and therefore deserved at least a hearing on the merits,³⁶ the Court would not be dissuaded. As in the two other “anticommunist” era cases—Knauff and Harisiades— the stigma attached to suspected Communist Party affiliations played an apparent role in the Court’s findings. For example, in distinguishing Mezei’s case from Kwong Hai Chew v. Colding,³⁷ which had recognized that lawful permanent residents deserved due process protection when returning from a temporary sojourn abroad, the Court specifically mentioned Mezei’s nineteen months behind the “Iron Curtain” as cause for suspicion.³⁸ Just as Chae Chan Ping and Fong Yue Ting appeared to have been driven by nativistic sentiments fueled by race prejudice against the Chinese,³⁹ Knauff, Harisiades, and Mezei were decided under the specter of the burgeoning Cold War, when allegations of Communist Party affiliation were, for noncitizens, scarlet letters that could lead to summary exclusion.

Just as it upheld the immigration powers of Congress and the executive against the asserted rights of Chinese nationals in the 1880–90s and foreign communist sympathizers in the 1950s, the Supreme Court has continued this trend against suspected terrorists in the late 1990s. In Reno v. American-Arab Anti-Discrimination Committee,⁴⁰ the Court stated that noncitizens could not defend against an otherwise valid deportation order by claiming that their First Amendment associational rights had been violated. The Immigration and Naturalization Service (INS) had sought to deport ei...