Embracing the Chinese Exclusion Case: An International Law Approach to Racial Exclusions

46 Pages Posted: 8 Apr 2017 Last revised: 10 Jun 2018

See all articles by Lauri Kai

Lauri Kai

White & Case LLP; College of William and Mary, Marshall-Wythe School of Law, Students

Date Written: February 21, 2017

Abstract

On December 7, 2015, Donald J. Trump called for a “total and complete shutdown of Muslims entering the United States.” The Court’s precedent from 1889, Chae Chan Ping v. United States — commonly known as the Chinese Exclusion Case — allows the Court to uphold a ban on Muslims from entering the U.S in 2018. There, the Court upheld Congress's ban of Chinese laborers from entry to the U.S. by creating the plenary power doctrine under which the judiciary defers to the political branches on immigration questions. The doctrine’s current form, established in 1972 and reaffirmed through 2015, merely asks whether an exclusion is made on a “facially legitimate and bona fide reason.” As long as the exclusion is on its face related to the safety of the nation, it seems that any group is susceptible to such a characterization and is thus excludable.

President Trump’s recent executive orders prohibiting the entry of refugees and citizens from certain Muslim-majority countries have caused much concern. Courts have rendered inconsistent decisions by either adhering to or finding ways around the plenary power doctrine. This Note recognizes the legal mess and finds that courts should stop distorting the plenary power doctrine. This Note argues that the plenary power doctrine’s command is not its holding--the doctrine establishing deference--but its underlying source of law, which is international law. In particular, this Note argues that the plenary power doctrine reflects international law norms, which the Court should recognize when confronting and invaliding a potential race-base exclusion.

Keywords: immigration; plenary power doctrine; Chinese Exclusion Case; race discrimination; international law

Suggested Citation

Kai, Lauri, Embracing the Chinese Exclusion Case: An International Law Approach to Racial Exclusions (February 21, 2017). 59 Wm. & Mary L. Rev. 2617 (2018), Available at SSRN: https://ssrn.com/abstract=2944128

Lauri Kai (Contact Author)

White & Case LLP ( email )

United States

College of William and Mary, Marshall-Wythe School of Law, Students ( email )

Williamsburg, VA
United States

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