The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights

Abstract

We tend to think of Chae Chan Ping v. United Statesi and the other Chinese exclusion cases of the late 1800s as a remnant of the racist past of Asian exclusion and segregation in America. However, these cases have had a tenacious grip on American law, and are very much alive and well. In the Chinese exclusion cases the Supreme Court first articulated the "plenary power" doctrine in the context of immigration law. Shortly thereafter, the plenary power doctrine also became a cornerstone of federal law governing both American Indian nations and external colonies such as Puerto Rico and Guam.2 Today, it is the plenary power doctrine articulated in these cases which allows the Justice Department to engage in the highly troubling selective imprisonment and deportation of Muslim, Arab, and Middle Eastern immigrants. The Chinese exclusion cases provide a valuable lens through which we can look at the significant role that the plenary power doctrine exercises in contemporary American jurisprudence. As such, they illustrate that the treatment of Asian Americans in the law cannot be dismissed as aberrational. More than a century of plenary power cases further demonstrate that the fate of Asian American communities is inextricably linked to that of all those deemed "Other" in America today, whether by virtue of race, ethnicity, national origin, religion, or citizenship status.