Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration

Abstract

For over a century, the Supreme Court has granted federal immigration laws a unique immunity from judicial review. Relying on the so-called plenary power doctrine, the Court has said that "over no conceivable subject" is federal power greater than it is over immigration; even modern federal cases, for example, state that Congress may freely discriminate on the basis of race in this context. In recent years, the Court has defended this approach primarily on stare decisis grounds. In this Article, Professor Gabriel Chin suggests that the plenary power doctrine should be reexamined because the foundational cases are unsound. Chae Chan Ping v. United States and Fong Yue Ting v. United States, the cases that established the plenary power doctrine and remain the leading cases, upheld federal discrimination against immigrants based on race. The plenary power cases were decided by the same Court that decided Plessy v. Ferguson; like Plessy, they reflect principles that have been emphatically rejected by the Court since Brown v. Board of Education.

Keywords: Immigration, equal protection, legal history, asian americans, chinese americans