Fordham Law School’s Center on Race, Law & Justice launched its fall 2017 speaker series with a presentation from UC Davis Law Professor Rose Cuison Villazor, who has in her recent scholarship applied critical race theory to the Supreme Court’s ruling in the landmark 1889 immigration case, Chae Chan Ping v. United States.
Chae Chan Ping, also known as the Chinese Exclusion Case, is considered the grandfather of immigration law cases, one of a trio of immigration law cases that formed the foundation for Congress’ immigration powers and, according to many legal experts, ultimately led to the plenary power doctrine, which says that the legislative and executive branches have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. Earlier this year, the Fourth and Ninth Circuit appeals courts cited Chae Chan Ping in placing on hold President Trump’s executive order banning nationals from six countries from visiting the United States.
Villazor wrote a chapter about the case for the forthcoming book Critical Race Judgments (Cambridge University Press), which examines how the Supreme Court might have ruled in seminal cases if it had employed critical race theory. Fordham Law Professor Robin Lenhardt, director of the Center on Race, Law and Justice, served as one of the four editors on the book project, and also edited Villazor’s chapter.
During her hour-long talk on September 19, Villazor informed an audience of Fordham Law students and faculty that her rewriting of Chae Chan Ping arose from a desire to specifically address racial discrimination and provide context on the exploitation of foreign workers, notably those who were invited for the cheap labor they would provide and who were then disinvited. She also sought to acknowledge the case’s connection to property rights.
“That to me was an important story to tell, about the role of race in subordinating groups, particularly immigrants,” Villazor explained. “Even if today immigration law does not have restrictions against race discrimination, I wanted to highlight why it is that immigration law is allowed to exclude certain groups of people.”
The Chinese Exclusion Case in 1889 featuring Chae Chan Ping came less than a decade after Congress passed the Chinese Exclusion Act (1882), which banned Chinese labors from entering the country for the next decade. Chinese workers who had already come to America to work on the transcontinental railroad or in mines were exempted from this law, which was initially stoked by anti-Chinese sentiment that the country’s immigrants did not assimilate well.
By 1884, government-issued certificates provided the only proof of entry. Four years later, no Chinese laborers were allowed to enter. Chae Chan Ping lived and labored in San Francisco for a dozen years, according to Villazor. Prior to the 1889 ruling, he had left the United States for China. When he returned to America, he learned that he would be deported, despite possessing a certificate that previously made him exempt and having family in the United States.
U.S. Supreme Court Justice Stephen Johnson Field wrote in his majority opinion that Congress possessed the power to enact the Chinese Exclusion Act, and thus Ping was deported. Villazor’s re-imagination of Chae Chan Ping finds Supreme Court Justice David Josiah Brewer ruling that the Chinese Exclusion Act is unconstitutional due to the Due Process Clause’s prohibition on Congress engaging in racial discrimination.
Villazor’s work raises the possibility of talking about liberty while confronting an issue of racial discrimination, said Lenhardt, who edited Villazor’s book chapter. Other cases dealing with discrimination, such as the Supreme Court’s landmark Obergefell v. Hodges marriage equality ruling, mention words like dignity and liberty, but the same is “almost never” true in cases involving race, Lenhardt added.
“So many students who grow up on these cases begin to think that the outcome in a particular case is the only outcome they could have achieved, that there’s no other way to think about this, no other way to understand the constitutional provision at issue,” Lenhardt continued, praising Villazor for creating a “defensible, completely logical, and supportable doctrinal path” that illustrates “what is did not have to be.”
Villazor emphasized that while today’s plenary powers are limited statutorily, Congress possesses broad abilities to act on major immigration matters such as President Trump’s travel ban or DACA (Deferred Action for Childhood Arrivals), which Trump has threatened to end.
“The 800,000 individuals are at the mercy of Congress right now,” Villazor said, referencing the Dreamers born in this country to undocumented immigrants. “If we had this vision of a limited immigration power, then I could see how it perhaps would highlight not only Congress’ power but also show there are some individual rights restrictions in immigration law.”