Immigration, the Constitution as interpreted by the Court, and Catholic Social Teaching

Our constitutional approach to aliens (non-citizens) is schizophrenic. 

In Graham v. Richardson, 403 U.S. 365, 372 (1971), the United States Supreme Court used strict scrutiny to strike down state laws that distinguished between legal aliens and citizens in the state’s welfare expenditures.  It held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.  Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.”

In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held (using an intermediate scrutiny standard) that a state could not discriminate against illegal alien children by denying them free public education.

But, in the Chinese Exclusion Case, 130 U.S. 581 (1889), the Court upheld the exclusion of Chan Chae Ping, a Chinese national who had lived in the United States for 12 years who left the country temporarily to return to China.  Before he left for China, he obtained a certificate from the United State government authorizing his return to the United States.  Unfortunately for him, as he was returning to the United States, Congress passed a law revoking the certificates authorizing return, and he was turned away.  The Court held:  “if, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion" is within the power of the government, even in times of peace.”

Although decided 115 years ago, the Chinese Exclusion Case continues to have vitality and was cited as authority by the 10^th Circuit earlier this year.  It created the plenary power doctrine, which basically stands for the proposition that our domestic constitutional norms are inapplicable in the immigration field.  In deciding who is admissible, excludable, and deportable from the United States, Congress can take into account race, religion, political affiliation, and gender in ways that would raise red flags if Congress attempted to do this in any other area.  And, because deportation is considered “civil” in nature and not “criminal,” the prohibition on ex post facto laws is inapplicable.

In a later posting, I’ll give an explanation of where our constitional framework for our alienage jurisprudence went wrong with some suggestions for how to get back on track.  I would also welcome comments from Chuck Roth, others working in immigration law, and anyone else.