The Devil Made Me Do It: The Plenary Power Doctrine and the Myth of the Chinese Exclusion Case

Abstract

For many commentators, Chae Chan Ping v. United States – commonly known as the Chinese Exclusion Case – occupies a prominent place in the rogues gallery of infamous Supreme Court decisions. In large measure, the reaction the decision is simply a byproduct of the outcome of the case; in both Chae Chan Ping and its first cousin, Fong Yue Ting v. United States, the Court upheld measures that explicitly singled out Chinese immigrants for unfavorable treatment on the basis of their national origin. But Chae Chan Ping and Fong Yue Ting are also reviled for another reason; together with the contemporaneous decision in Nishimura Ekiu v. United States, they are generally seen as the source of the hated “plenary power” doctrine – the view that, for constitutional purposes, congressional decisions on immigration and naturalization issues are qualitatively different from other federal legislation, and thus should generally not be subjected to judicial scrutiny. This Supreme Court has also cited these decisions as the source of the plenary power doctrine.

This article will contend that the standard interpretation of Chae Chan Ping, Fong Yue Ting and Nishimura Ekiu is simply wrong. It will argue that, far from being based on the plenary power doctrine, the decisions in those cases were based upon constitutional principles that the Court viewed as equally applicable to immigration and nonimmigration cases.

Keywords: immigration law, plenary power