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Race, Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case

Constitutional Commentary, Vol. 26, p. 237, 2010

53 Pages Posted: 27 Oct 2009 Last revised: 21 Jul 2013

Liav Orgad

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); WZB Berlin Social Science Center

Ted Ruthizer

Columbia University - Law School

Date Written: October 21, 2009

Abstract

In May 1889, in the Chinese Exclusion Case, the U.S. Supreme Court decided that Congress has the power to exclude people of Chinese descent from U.S. territory. 120 years have since passed: is this case a relic from another era or still good law? In this article, the authors discuss the question whether race, religion and nationality still matter in the process of immigration selection. They demonstrate how official and central racial classifications remain in current immigration policy. The authors then consider a normative question: is the use of race, religion and nationality in immigration selection legally permitted? They analyze this question under the lens of three normative disciplines: constitutional law, international law and moral philosophy. They show that under each of these disciplines, some forms of race-based criteria are generally permitted in the process of immigrant selection. Focusing on protecting national security as a case study, the authors nevertheless challenge the use of racial immigration criteria based on utilitarian grounds. They show how the use of race in immigrant selection often lacks statistical correlation, is not cost-effective, and is likely to be over-inclusive and far in excess of its potential contribution due to cognitive biases and heuristic judgment. They conclude by suggesting four alternative methods for selecting immigrants: universal selection, positive selection, random selection and racial selection with just compensation.

Keywords: immigration selection, race and religion, Chinese Exclusion Case, Kiyemba v. Obama

Suggested Citation

Orgad, Liav and Ruthizer, Ted, Race, Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case (October 21, 2009). Constitutional Commentary, Vol. 26, p. 237, 2010. Available at SSRN: https://ssrn.com/abstract=1492431

Liav Orgad (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
+972-9-9527329 (Phone)

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

HOME PAGE: http://https://www.liavorgad.com

WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

Theodore (Ted) Ruthizer

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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