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INTERNATIONAL MIGRATION AND THE “JUDICIALIZATION”
OF FOREIGN POLICY IN THE UNITED STATES1
Charles Gomes2
INTRODUCTION
Before The Chinese Exclusion case3, immigration to the United States occurred basically
without restriction. It was only in the late nineteenth century that Congress decided to limit
immigration from some countries. The Chinese exclusion decision can be considered as the
symbol of this political change4. In this case, a person of Chinese origin had lived in the US
legally for twelve years. He left the country with documents allowing his return. When he came
back to US border, the authorities denied him entry because of the new act of the Congress that
exclude all Chinese to enter the territory.
Although, in the United States Constitution, international migration policy was not and is
not one of the enumerated powers of Congress, the Court decided in this case that the political
branches also have powers not enumerated in the constitution. This is the case of
the power to
maintain its national and international sovereignty which includes the right to control its territory
and safeguard its security. The Chinese case can be considered one of the starting points of the
sovereignty theory inside the Judiciary which gives the federal government “plenary power”
on all foreign policies.
A little over a century has passed since The Chinese Exclusion case, and some lawyers
and political scientists still consider nowadays this case as representative of the Judiciary
position toward international migration issues. But lots of changes took place on the matter up
1
I wish to thank Martin Shapiro for his helpful suggestions in the selection of judicial cases.
PHD researcher at IUPERJ (Rio de Janeiro University Institute of Research). The author study on immigration is
sponsered by Capes (Fundação Cordenação de Aperfeiçoamento de Pessoal de Nivel Superior)
3
Chae Chan Ping v. United States, 130 US 581 (1889).
4
See Stephen Legomsky, Immigration and the Judiciary, at 183 (1987). He considers precedent cases in the origin
of the political change.
2
1
to the point that the Chinese nowadays are one of the biggest groups of immigrants able to
succeed in judicial claims against federal government decisions5. Therefore, a more detailed
analysis of Supreme Court position and mainly federal courts decisions toward immigrant
claims would make us arguing whether courts are really denying judicial review for immigrants
in the name of the “plenary power” of Congress on foreign affairs .
In an attempt to better understand the role of the American Judiciary on the issue of
international migration, the article will proceed in two steps: (1) part one will review the theory
of sovereignty or the “plenary power” procedure used by the Supreme Court and show its the
lack of judicial6 foundation. The idea of this first part is to present the basic discourse used by
courts to deny immigrants the possibility of judicial review and how it contradicts the
constitution and the basic procedures used in cases of judicial review. (2) Part two will consider
the increasing tendency of federal courts to deny this theory by accepting judicial review on
immigration cases. In this second part, the idea is to show the tendency, more and more common,
towards the expansion of judicial power in new areas of politics such as foreign affairs, generally
considered as belonging to the federal government domain. The point will be presented by
showing how fundamental rights, or in other words, “transnational procedures”7, are the basic
instruments that protect immigrants and how they are articulated inside the national judicial
frame. The idea is to show how courts tend to highlight in their decisions the importance not only
of the constitution but also the importance of the social links established by the immigrant in the
American society.
PLENARY POWER IN QUESTION
5
See Peter Schuck & Theodore Hsien Wang, Continuity and Change: Patterns of Immigration Litigation in the
Courts, 1979-1990, 45 Stan. L. Rev., at 138 (1992) According to them: “Chinese immigrants are the only group of
excludable aliens who have arrived on the west coast and have generated a significant volume of litigation, largely
through asylum claim”. And: “Chinese asylum applicants have a relatively high asylum claim success rate in
administrative proceedings, their claims rarely reached the federal courts”.
6
the term judicial is used instead of legal for its broader scope in law analisies.
7
See Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe; and David
Jacobson, Rights across Borders: Immigration and the decline of citizenship.
2
The discussion
below attempts to show the lack of judicial foundation in courts
decisions that emphasize the theory of sovereignty and deny immigrants the possibility of
judicial review. The argument follow three paths: (1) in the first part, I will present some cases
where the courts began to apply this doctrine and the basic pillars of their judicial discourse. (2)
secondly, I will try to show how the denial of judicial review for immigrants contradicts the
general principles of law formulated in the constitution. (3) Considering the American judicial
tradition, I will show that it can be argued that the general principles of law are less important
than the circumstances of the case in the judicial decision of courts. A better analysis of the
American judicial system makes it possible to say that the normative in the judicial field comes
less from the constitution and much more from the usual procedures used by courts. The
common procedures more than the law in itself form the judicial standard used by judges.
Therefore, the intention of the third part is to show how judicial abstention in immigrant cases
also contradicts these norms based on procedures.
The first important point to stress is that the sovereignty theory is a creation of the
Supreme court itself. The idea of giving plenary power to federal government was conceived to
be applied in foreign affairs, a domain that would start to belong exclusively to the political
branches. Since the plenary power doctrine in immigration matters is a product of the
jurisprudence created by the Supreme Court in the nineteenth century, the first statement would
be that judicial abstention in these matters did not have any sort of textual commitment.
This practice of abstention became however so common in the Judiciary that courts used
to apply the principle of “plenary power” in foreign affairs without even articulating reasons.
Nonetheless it is still possible to collect some courts statements where judges
explanations in the attempt to better justify
presented
their decisions. The leading case of judicial
abstention in foreign affairs was in 18398. The Court concluded the case by saying:
“And can there be any doubt, that when the executive branch of government, which is
charged with our foreign relations, shall in its correspondence with a foreign nation assume
a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial
department? And in this view it is not material to inquire, nor is it the province of the Court
to determine, whether the executive be right or wrong. It is enough to know, that in the
exercise of his constitutional functions, he has decided the question. Having done this
8
Williams v. Suffolk Ins. Co., 38 US 415 (1839)
3
under the responsibilities which belong to him, it is obligatory on the people and
government of the Union”9.
When the concerns focus on international migration, the Chinese Exclusion case
come in mind as the first one on this matter to apply the doctrine of judicial abstention. It is
however important to notice that, after the jurisprudence formulated in this case, immigration
started also to be considered and included inside the possible threats to the sovereignty of the
State. And as the Court concluded: if a nation “could not exclude aliens it would be to that
extent subject to the control of another power”10. The argument used by the Supreme Court
was almost the same in the other well known Chinese case: “the United States are a sovereign
and independent nation, and are vested by the Constitution with the entire control of international
relations, and with all the powers of government necessary to maintain that control and to make it
effective”11.
The concept of self preservation12 was the one more used by courts to make clear the
importance that they were giving to the idea of sovereignty: “every sovereign nation has the
power, as inherent in sovereignty, and essential to self preservation, to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases and upon such conditions as
it may see fit to prescribe”
13
.
In several later cases, courts discourse would
quote directly
the importance of
preserving the sovereignty of the nation-state. The focus on the sovereignty theory became even
more clear when the Supreme Court finally stated that the State in order to be sovereign should
have plenary authority within its territory. And for that goal, the Judiciary should have no
interference in foreign affairs. The Court concluded the case by saying: “who is the sovereign,
de jure or de facto, of a territory is not a judicial, but a political question....”14.
9
quoted in Louis Henkin, Is There a Political Question Doctrine?, 85 Yale L. Journal, 611 (1976)
Chae Chan Ping v. United States, 130 US 581, 604 (1889)
11
Fong Yue Ting v. United States, 149 US 698, 711 (1893)
12
See the Supreme Court case in 1892.
13
Henderson v. Wickham, 92 US 259 (1875); Chy Lung v. Freeman, 92 US 275 (1875); Edye v. Robertson, 112 US
580 (1884); and Chae Chan Ping v. United States, 130 US 581 (1889). The first three cases can be considered as the
transition of the issue of immigration from the level of states to the level of federal government and the last one, the
Chinese exclusion case, is already the application of federal immigration law and the judicial deference in
international migration cases.
14
Jones v. United States, 137 US 202, 212 (1890)
10
4
Political explanations in the judicial discourse started to become common sense, being
gradually reinforced by several judicial decisions. The discourse of State sovereignty would
take an even broader dimension, Courts would identify cases not only as a threat to national
security but also as a threat to public welfare, to public institutions, or even in a vaguer
sense as a threat to the national interest15. Therefore, since there was a judicial claim concerning
foreign policies, state legitimacy would not be perceived as the junction of constitutional rights
and popular sovereignty. Democratic legitimacy would be based only on the political branches.
In court discourses the common term “national interest” would be defined and applied as being
a wish of the Congress and whose decision would be considered as final to the Judiciary.
These cases make clear that the Judiciary position in foreign affairs would be done in
order to maintain a foreign policy as
homogeneous and uniform as possible, even if for that
achievement foreign policy needs to loose its judicial basis and to become exclusively a political
issue, concerning only the political branch. There should be no constitutional obstacle able to
imply a possible judicial review. This tendency of federal courts raises several judicial issues:
Does the American constitution limits the scope of judicial review? Is there any amendment that
guarantee the federal government plenary power? And, if that is the case, in which issues do the
political branches have plenary power?
The United States Constitution limits the power of the Congress in two ways. First, the
federal government is considered to have constitutionally enumerated powers and it must tie its
action to one of the federal powers enumerated. In the case of foreign affairs, the constitution
grants some powers to the political branches. More precisely, it grants Congress the power “to
regulate commerce with foreign Nations... to declare War .... to raise and support Armies... to
provide and maintain a Navy” and it grants the President the power to make “treaties, appoint
ambassadors”. And the President is also considered “the commander in chief of the Army and
Navy”16.
15
See ..............., Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and
Transnational Norms, 103 Harvard law Review, 1273 (1990)
16
American Constitution, article I and II. See J.E.Nowak, R.D.Rotunda, and J.N.Young, Constitutional law (1983),
at...
5
The text makes clear the fact that the authority to exclude immigrants does not come from
constitutionally enumerated powers. This position toward immigrants would come exclusively
from the Supreme Court’s autonomous decision to expand these enumerated
powers of
Congress to all foreign affairs. Therefore, once one has a more critical approach to the issue, one
could consider the tendency of the Supreme Court to act in such a way as being an extrapolation
of the constitutional text.
Secondly, there are several constitutional affirmative limitations of the power of the
federal government. These are all the provisions that protect individual rights and describe all the
actions that the federal government may not undertake. Therefore, one can state that there is
another constitutional contradiction in courts application of the sovereignty theory. The use of
this theory would imply not an extrapolation but much more a disregard of the constitutional
text. Putting it in other words: even if the enumerated powers in the constitution allows
Congress to have plenary autonomy in some policies that concern foreign affairs, its extension
to all foreign policies can only be done by ignoring an important part of the American
constitution. In following the constitutional text, the
argument against the plenary power
doctrine would be to say that “immigrants to or inside the US” should also be protected by the
American jurisdiction. And, indeed, the Fourteenth Amendment, in its second sentence of section
one, states that: “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws” 17 . The norm that comes from the constitution has an universal and
neutral feature, “due process and equal protection” should be conceived and applied to all
person without any national distinction. The amendment makes clear the division between the
rights which concern only
citizens and which concern all individuals or, more precisely,
“person”. By following this path, the common and more evident tendency in all judicial critics is
to consider the plenary authority given to federal government as being an anomaly of the
constitutional text, or, in a more political sense, as not respecting to the constitutional legitimacy
of the state.
17
Ibid.
6
Perhaps the lack of respect to the Constitution in Supreme Court decisions is not the
only and the strongest contradiction that should be presented when one talks about judicial
solution of conflicts. It is well known that the judicial model that predominates in the US has
never been the one based on codified law where the goal of courts is to deduce the decision
from general rules, codes and law. On the contrary, the classical relation between rules and
decision is turned up-side down in order to put the facts and the social circumstances of the case
in a higher degree of importance. It would be more correct to say that what comes first for
American judges is the decision and only then comes the law, the latter being much more
deduced or created by the first18. This realistic canon of the sociological jurisprudence tradition
has always been very strong in the American judicial analysis.
There is however a common argument usually raised against this “realistic” approach
of the American judicial model. The critique
considers
that this “realistic view” of the
Judiciary tends to limit and even deny the possibility for a certain normative able to guide
court decisions to emerge. This judicial tendency would imply the reduction of the right to
the fact, and a view of the judicial landscape as a multiplicity of different decisions. In a way
it would be impossible to link one decision to another. The normative is diluted and the result
is a sort of atomization of the judicial field 19 where what characterizes decisions are their
particularities and not their similarities.
In contradiction with this chaotic impression of the American judiciary, there is another
tendency that considers the judicial decisions not as free and loose as it would appear in the
former approach. In this different view, decisions would be attached not to general rules and
aprioristic norms but to a set of “common procedures” that all courts would tend to follow.
From that perspective, every court would: first, try to solve the conflicts that are presented to
them; secondly, balance the interest of the parts inside the conflict; and, finally, take a decision
as optimal as possible, in a sense that the decision would result in the least damage possible
for all parts involved20. Therefore, court decisions would have as a basic criteria the effort to
display as much as possible the courts’ traditional position of neutrality. And the strength of
this normative based on procedures would get stronger the higher the court position is in the
18
19
20
See J. Frank, Mr. Justice Holmes and non-euclidean legal thinking
See François Ost, Jupiter, Hercule, Hermès: trois modèle du juge, at 252.
See Martin Shapiro, Who guards the gardians.
7
judicial scale. Therefore, the Supreme Court’s decisions would be the most neutral in the balance
of interests in the dispute.
If it is correct to say that there is a sort of normative that comes from the common
procedures used by courts, judicial critique in immigration cases can also be done by showing
the lack of these procedures in the way that courts decided to consider immigration as a foreign
political issue that required for judicial restraint. Following this critique, if courts do not apply
the constitutional text directly, it should use at least the same judicial procedures applied in
other constitutional review cases. In other words,
federal courts should first of all balance and
analyze the assumption of considering international migration as a possible threat to the nationstate sovereignty.
Secondly, in each case in which courts decide that the federal government really has a
reasonable motivation in its action, the decision based on a political justification should only
be judicially relevant if it is done by using the common procedures of a judicial process. Once
following this path , courts, after showing the reasonableness of the decision, should proceed by
balancing the interest of the parts (rights for immigrants or the exclusion decision of to the
federal government). Finally, the decision should be as neutral as possible in order to really
promote the less damage decision to all parts. Therefore, immigration cases would not suffer
from judicial abdication and would be reviewed on the basis of common law procedures. To sum
up, this would imply courts should bear the burden of
“proof of evidence” in order to attain
“due deference”21.
Following this perspective, there is a tendency of courts to escape not only the norms
forged by the constitution but also the norms based on the judicial procedures commonly used
by federal courts. Then, it is
possible to conclude that, once the plenary power doctrine was
used, it was the political structure, in which the judiciary is integrated, that had more relevance
in courts decisions toward immigrants. Once applying the doctrine of deference, the judiciary is
considering itself much more as one of the parts of a political organization (the nation-state) than
as an institution able to protect fundamental rights. Therefore, instead of playing the traditional
21
See Thomas M. Franck, Political question/judicial answers: does the rule of law apply to foreign affairs? at 128.
His argument is that US should follow German constitutional court that assume that all question are justiciable. This
put an end to the distinction between political and legal questions.
8
functional position of balancing power between individuals and the federal government, courts
are playing the role of an institution looking much more to the political structure than to
individuals and society22. By using this way of proceeding, courts make clear that the social
links established by the immigrant in the host society almost do not count in judicial decisions.
By analyzing the court’s discourse that justify deference in foreign affairs, the point
appears even more evident. Once they consider a political explanation more than a satisfactory
argument to deny judicial review, courts emphasize decisions that highlight the priority of state
sovereignty in immigration cases and in all other foreign affairs issues. Once they take this
position, the courts are at the same time saying that the sovereign state should be interpreted as
a state that has an homogeneous, unitary and well sustained policy toward foreigners. Their
decision for deference shows an approach to international relations that only recognizes the
state as an important international actor.
And the relevance of
transnational relations
established by the American society and foreigners appears to be completely irrelevant in their
decision.
THE JUDICIALIZATION OF IMMIGRATION POLICY
The main focus of this part is to present how the Judiciary has been denying the
sovereignty theory on issues that concern immigrants. The argument follow three steps: (1) if
courts started to conceive judicial review toward immigrants, one assumption can be raised: there
is a tendency of the Judiciary to play a more political role and not follow blindly the wishes of
the legislator. Therefore, the first point is to examine how this trend of position emerged in
federal courts decisions. (2) Secondly, I will present the basic judicial criteria for courts to
review federal government decisions over immigrants. (3) Finally, it will be argued that once it
has accepted judicial review the judiciary tends to reinforce
the protection of individual
fundamental rights. And by doing so, it tends to conceive and apply rights independent of the
national origins of the individuals involved in the judicial conflict.
22
based on the history of federal courts process, it is possible to say that courts worry about society when the dispute
9
- judicializing immigration policyThe expansion of judicial power is associated with the increasing role that courts are
playing in the political sphere. The third pillar is far from being considered as having the
automatic function of applying laws elaborated by Congress. The political capacity of courts
comes from basically two paths: first, it arises from the power of
judicial review, i.e., verify
the content of new laws and its compatibility with regard to the constitution. Secondly, it
comes, following a more realistic frame, from the increasing tendency of judges to
replace in several cases the role of the legislators and to become judicial law-makers23.
This court tendency to have a political role more than only a judicial one is not recent in
America24. This “judicialization” of politics is however less common in particular setting such
as foreign affairs. International migration can be taken as an example of this phenomenon of
transforming foreign affairs from a nonjudicial decision-making process into a policy-decision
process more dominated by legalistic rules and procedures. In the case of immigration, the
change means that exclusion, deportation, visa denial, naturalization, citizenship and asylum
policies toward immigrants are no longer exclusively in the hands of the political branches of
power. They are also submitted to the third pillar that has been increasingly invalidating acts
made by federal government agencies25.
On matters concerning immigration policy, the idea of perceiving judges as legislators
does not come from the fact that courts are voiding laws and creating new ones on the issue26. On
the contrary, the common tendency of the Supreme Court in the United States is more to
respect than to interfere in the immigration and naturalization acts elaborated by the Congress27.
The idea about the legislative power of judges is based on the consideration that the simple act
concerns economic actors against the state.
23
See Neal Tate & Torbjörn Vallinder in “The Global Expansion of Judicial Power”, 1-37 (1996)
24
This realistic approach is well known in US. Judicial interference started by the famous case Marbury v. Madison
5 US (I Cranch) 137 (1803). This tendency is also shown by the existence of famous reviews and journals on the
topic for a long time. And the fact that the US is the first country (if not the only one) with a university career in
sociology of law, called “law and society” is also very telling.
25
See Peter Schuck & Theodore H. Wang, “Continuity and Change: Patterns of Immigration Litigation in the Courts
1979-1990, 45 Stan.L.Rev., at 159,160,170 (1992).
26
On other issues of foreign affairs, courts made law in a more direct sense, acting as implicit legislators. See, L.
Henkin, Foreign affairs and the Constitution, at 216-221.
27
There is almost no case where the Court voided the immigration laws elaborated by Congress. Only the Chadha
case can represent a Supreme Court decision that annuls a Congress decision related to immigration. In this case, it
considered unconstitutional the legislative veto used to overturn the suspension of deportation made by a lower
court. See, INS v. Chadha, 462 US 919 (1983).
10
of interpreting the constitutional text can be already considered as a policy-making process
on the issue of international migration.
It is curious to notice that the first political role played by the judiciary on the issue of
international migration was not as recent as the common literature would make us believe. In fact
it was, on the contrary, just after the Chinese exclusion case that the judiciary presented its
discontent with denying immigrants judicial review. The Sing Tuck case28 can be taken as an
example. To avoid an exclusion decision29, a Chinese, followed by thirty-two other applicants,
requested the judicial review of an immigration officer’s decision in a federal court. The first
step was done on the basis of an habeas corpus petition . The Chinese affirmed that he was born
in the United States and could not be excluded from the American territory. The possibility of
being an American would give him citizen rights. It means that he could not be deprived of his
liberty or property without due process, i.e., without a judicial trial. He got to confirm the fact
that he was born in the US by the statement of two testimonies. Since there was no evidence
against this possible fact, the court decided that exclusion was not fair in this case. In other
words, the court
justified the decision by affirming a lack of due process on the act of
exclusion.
The same procedure happened in several other cases up to the point that the federal
government advised federal courts that they were rejecting the immigration federal statute passed
by Congress (the act of 1894) that makes the decision of immigration inspectors final30. In any
case, maybe all the parts involved in the process, even the judges, knew that the Chinese were
lying, but lower federal courts preferred, instead of giving
federal government plenary
autonomy to do acts of exclusion and deportation, to review all the cases of Chinese that claimed
to be American citizens. Therefore, the way immigrants used to escape from federal immigration
control was the possible access to constitutional rights (due process)31. The fact of knowing that
the Chinese were lying in their statements gives us a reason to believe that judges were acting in
a very political sense against federal government decisions on immigration control. The judicial
28
Sing Tuck v. United States, 128 US 592 (1904)
the distinction between exclusion and deportation is important. Expulsion is done when the person is still under
the border control, not yet inside the country and judicial review is more difficult in these cases.
30
For a more detailed analysis of these cases, see Lucy E. Salyer, Laws harsh as Tigers, at 107-116 (1995)
31
See Edwin Harwood, “How should we enforce immigration law?”, at 86. He argued, if the demand based on
procedural rights are attended the “immigration enforcement would collapse”.
29
11
frame was offering
courts the possibility to put a break
on the effectiveness of federal
government immigration control and to offer the Chinese at least one avenue to enter the
country.
Although the preference of lower federal courts
was to concede judicial review,
political deference would start to become predominant in federal courts after the Supreme
Court decision on the issue of immigrant exclusion. In fact, the possibility for the Chinese to
claim American citizenship in order to avoid exclusion took an end in The Ju Toy
32
case. After
this case the Court decided not to make any further distinctions between aliens and citizens and
to subject both to only one federal authority, i.e., to the immigration officer. Once again there
was no more avenues for the Chinese to enter the country and discretion was reestablished on
the issue with a new deficit, the disrespect of the 5th amendment that gives all citizens the right
to due process.
To sum up, the Chinese cases present an important point. The fact of giving the Chinese
the possibility of having a trial would make all exclusion laws ineffective. It would be a clear and
direct denial of federal government decisions on immigration. In the name of a political reason
the Supreme court took the abstention position and abandoned all possible judicial arguments
and let its jurisprudence proceed with a higher constitutional deficit. After the Court’s decision,
all federal courts would follow this new jurisprudence. The new behavior toward immigration
policies would be perceived not only as a disrespect to personal rights but also to citizens rights.
So just after the Chinese exclusion case the third pillar started this sort of slowly
transformation on immigration policies. Although these cases have shown the insatisfaction of
federal courts toward federal government decision on immigration issues, the common tendency
of courts during almost the whole 20th century has been to deny judicial review to immigrants.
There were several single cases that can be considered as the exception rather than as the
common standard of the Judiciary33. The tendency to refute the plenary power doctrine and to
concede judicial review to immigrants started to become an usual procedure of lower federal
courts only in the late seventies and beginning of eighties34.
32
United States v. Ju Toy, 198 US 253 (1905)
See Legomsky, Stephen. Immigration and the Judiciary: Law and Politics in Britain and America. At 143-219.
34
See Schuck, Peter and Wang, Theodore Hsien. Continuity and Change: Patterns of immigration Litigation in the
Courts, 1979-1990. 32 Stanford Law Review 1992. It states: “aliens were successful in overturning administrative
33
12
-Using due process and equal protectionIt is important to notice however that the jurisprudence giving immigrant access to
constitutional rights is not a recent event. The Supreme court decided, also in the beginning of
the century, to give immigrants the possibility of judicial review in cases of deportation. It was
in the Japanese Immigration case35 that the Court decided that “an alien who has entered the
country, and has become subject in all respects to its jurisdiction, and a part of its population” is
entitled to due process and cannot be “deported without giving him all opportunity to be heard
upon questions involving his right to be and remain in the United States”. This case would put at
least cases of deportation inside the frame of judicial review, based on the immigrant rights to
due process, i.e., the possibility to be heard in a trial.
The plenary power doctrine would nevertheless dominate all the other courts decisions
in cases of exclusion and deportation where the claims were based on procedural due process.36
This doctrine would be even used in deportation cases of permanent resident immigrants. The
classic decision was taken by the Supreme Court in Harisiades v. Shaughnessy
37
. In this case,
several permanent immigrants had received an order of deportation because of their membership
in the Communist party. The judicial claim was based on two main arguments. First, the
immigrant possessed the right to remain in the country. Secondly, following this right, the
justifications for deportation would entail the reasonableness of the decision, proofs that
legitimate the governmental interest against the individual freedom of association guaranteed by
the First Amendment. The Court concluded the case by stating that Congress decisions are
“largely immune from judicial interference”. The other main case of communist affiliation would
come later on, in 1972. The interesting point in the case of Kleindienst v. Mandel38 is that the
Court admitted the importance of balancing the interest of the federal government against the
individual right to free expression. The Court took however a position in favor of the government
denials of asylum requests....Furthermore, aliens and advocacy groups were also highly successful in impact
lawsuits...”, at 177.
35
Kaoru Yamataya v. Fisher 189 US 721 (1903)
36
See Legomsky, Stephen. “During the period from 1905 to the early 1950s, there followed a series of procedural
due process challenges to exclusion and deportation orders. Most such cases summarily dismissed the aliens’
arguments without exploring the need for specific safeguards. Many simply cited previous plenary power doctrine
cases”. At 199.
37
342 US 580 (1952)
13
decision by saying that no balance of interest was necessary in this case because there was a
“factually legitimate and bona fide” reason for the exclusion.
In 1982, however, a judicial shift in favor of the immigrant took place, the Supreme
court would reinforce once again its position in favor of judicial review. In contrast with the
common procedure, the court decided to put also cases of resident immigrants who were
denied reentry into the country under the scope of judicial review. The point defended by the
court was clear: once living in the US an immigrant even out of the country should also have
access to constitutional rights. In the case of Plasencia, Justice O’Connor defined well the limits
of the plenary power of federal government decisions: “an alien seeking admission to the United
States requests a privilege and has no constitutional rights regarding his application, for the
power to admit or exclude aliens is a sovereign prerogative...However, once an alien gains
admission to our country and begins to develop the ties that go with permanent residence his
constitutional status changes accordingly.”39
On the late 80s, the transformation of the courts position in immigrant cases attained
its higher level. An important aspect of this change is the fact that even the consideration of
admission as a privilege started to be put in check and the alien started to get access to
constitutional review of her/his application to enter the country. The case of
Hortensia
Allende40 (the widow of Salvador Allende) can be seen as an example of the different position
that federal courts were taking toward communist affiliation cases and concession of judicial
review in visa denial claims. In this case, the consular officer’s visa denial was based on the
national security provision of the INA (Immigration and Nationality Act)41 that justify exclusion
of aliens that are members of Communist associations. Contrary to Mandel’s case, the court took
the position of the plaintiff and shuck down the statute of communist affiliation of the INA by
stating that a difference should be established between the simple fact of entry and presence of an
alien and the expected Communist activities after entry. And the 1st circuit court ruled the
38
408 US 753 (1972)
Landon v. Plasencia 459 US 21 (1982)
40
Allende v. Shultz, 845 F. 2nd 1111 (1st Cir.1988)
41
The Reagan Administration is well known for having used the national security provision of INA on a large scale.
See Aleinikoff, T., Martin, D. & Motomura, H. at 354.
39
14
case in favor of Ms. Allende’s cause. It is important to notice that, after this case42, the INA
reform of 1990 decided that exclusion for members of the Communist party would only apply
to immigration applicants.
The ideological exclusion took a final end in Rafeedie v. INS 43 . The exclusion of
Raffeedie, a returning permanent resident, was based also on the national security provision of
the INA by considering him a terrorist with a high position in the Popular Front for the
Liberation of Palestine. The court denied the INS decision and stated that this alien could invoke
full First Amendment protection and that the provision was “unconstitutional for overbreadth and
vagueness”44. All these cases make clear the change of the courts position toward immigrant
judicial claims. Instead of accepting and using political justification to deny judicial review, the
courts decided not only to offer them the possibility of judicial review, basically on the basis of
due process, but also to put in question even the INA provisions that justify exclusion on the
basis of political reasons, i.e., as being a threat to the sovereignty of the State. It makes clear that
the sovereignty idea to safeguard the American security is not a very reasonable criteria to
exclude an alien.
The most famous Supreme Court case that shows the more evident tendency to put an end
to the plenary power doctrine has been INS v. Chadha45. In this case, the Court struck down a
provision of the INA as unconstitutional. This provision used to give the House of Congress the
possibility to nullify a suspension of deportation. In this case, an immigrant got a suspension of
deportation made by a lower federal court. The House of Congress used its “legislative veto” and
disapproved the suspension. The Court ruled the case in favor of the alien by saying that “the
plenary authority of Congress over aliens under the naturalization clause is not open to question,
but what is challenged here is whether Congress has chosen a constitutionally permissible means
of implementing that power”46. Although law scholars tend to see this case more as an intention
42
There were similar cases of ideological exclusion. See Abourezk v. Reagan 785 F.2nd 1043 (1986), City of New
York v. Baker, 878 F.2nd 507 (1989).
43
Rafeedie v. INS, 795 F.Supp. 13 (D.D.C.1992)
44
Nevertheless this provision is still very used by consuls and Ambassadors to justify visa denial. See the case of
Fernando Gabeira, Brazilian federal deputy, whom visa was denied for being considered terrorist. In Jornal do
Brazil ....
45
103 S.Ct. 2764 (1983)
46
Ibid. at 2779.
15
of the Court to put an end to “legislative vetoes” than as an intent to change immigration law, it
seems that the decision shows the Court consciousness to not apply the plenary power doctrine.
The transformation of immigration law should not be limited to what courts have
done to reinforce basic rights, it is also an issue of the different procedures that the courts started
to have in order to put in practice these basic rights (due process and equal protection). Just
giving immigrants due process does not mean that s/he can remain in the country. In fact, the
majority of the deportation orders are applied following the INA statute that courts tend to
respect. This behavior of respect would make one believe that all judicial claims based on due
process would be admitted for review but the decision would be in favor of federal government
agencies. The important point is that Courts however do not apply the rules elaborated in the INA
blindly. They decide to use also the principle of proportionality (balancing interests inside the
conflict) and, therefore, to reinforce the circumstances and facts able to protect the immigrant
against federal government decisions.
This normative based more on procedure than on the law means that a worry about the
immigrant social ties in the host country started to become more and more a relevant argument
raised by lawyers in an attempt to avoid deportation decisions of the INS toward immigrant
clients47. The relevance of social ties makes clear that illegal immigrants are not judged only on
the basis of respecting or disrespecting the national law on immigration. Society and its
transnational configuration, that incorporates the illegal immigrant, is taken into account against
the national border limited legislation. Therefore, it is possible to notice that immigration law
started to become less a foreign affairs issue and much more a public law issue that, like all the
several others, is also submitted to judicial review.
This sociological approach of judges to the issue of immigration became more evident in
the famous Supreme Court case Plyer v. Doe48. The judicial claim was based on the clause of
“equal protection” for a child of illegal immigrants whose access to public school had been
denied. And the Court ruled the case in favor of the plaintiff and reinforced the argument that
47
See for exemple the home page of Guatemalan Unity Information Agency (www.immigration.com) that says that
in order to have a suspension of deportation, a solicitor needs to proove “.....attachment to the U.S. community;
....your contributions to the United States community, your position in the community....all factors that may help
prove the damage and extreme suffering in case of deportation....”
48
457 US 202 (1982)
16
the state of Texas’s denial of public education to undocumented immigrant children violates the
“equal protection” clause of the constitution. The case makes clear that the benefits of national
membership is not limited to citizens and should also encompass the whole society that is under
American jurisdiction independent of their national origin and political status.
Even though the case did not concern illegal immigrants directly, it highlighted the
judicial tendency to avoid all sort of possible discrimination against immigrants (the term alien
is more appropriated) and national citizens. The emphasis of this case on equal treatment from
state agencies could be seen as important for immigrants as the case of Brown v. Board of
Education49 for Black Americans. The Court stresses that nationality, like race and ethnicity, is
a suspect classification, in the sense that it can also be a tool able to promote discrimination50.
By deciding the case in favor of the immigrant, the Court recognizes also the fact that
both Americans and immigrants are part of the same society and share the same social
institutions. The position of the Court in this case made some law scholars consider Plyer v.
Doe as a shift of paradigm in law culture51. The trend would be the one from a nationalist to a
more communitarian judicial approach on the issue of immigration. The case can be considered
as symbolic of the American judicial position toward immigrants, in a sense that it represents a
new period in American federal courts. It marks a new age more characterized by an “alien
protection jurisprudence”. This new tendency of the Judiciary is already well established
nowadays in courts, where immigration cases constitute the majority of judicial claims that
concerns administrative law and the rate of immigrant claims success is quite high compared to
precedent decades.
CONCLUSION
The analysis of the Judiciary approach toward immigrants shows that courts tend to not
consider anymore immigration as being a foreign affair issue, on which federal government
should have “plenary power”. Immigration should be treated as an issue belonging to the public
49
347 US 483 (1954)
See all other classic immigrant cases considered violative of equal protection: Bernal v.Fainter 104 S.Ct. 2312
(1984), Nyquist v. Mauclet 432 US I (1977); Douglas v. Seacoast Products, Inc. 431 US 265 (1977), Sugarman v.
Dougall, 413 US 634 (1973); Graham v. Richardson, 403 US 365 (1971).
50
17
law domain and concerning members of a society under federal court jurisdiction. The political
shift of the Judiciary shows that immigration law should be no longer insulated from judicial
fundamental norms and procedures. The access to national federal courts is not limited anymore
to Americans, it is also available to noncitizens (being them legal or illegal).
The evolution of immigration judicial decision can be considered as representative of the
importance that the Judiciary is giving to the transnational configuration of American society.
The main argument was to show how the Judiciary is more and more concerned with the
protection of fundamental rights in spite of the national origins of the individuals. In a sense that
the immigrant’s non access to judicial review in case of exclusion or deportation tends to be
almost impossible nowadays. The Judiciary by this new approach towards immigrants opened the
doors of the state to noncitizen populations and legitimized their membership by the
universalistic frame of constitutional rights which are not anymore limited to the protection of
American citizens.
BOOK REFERENCES
Aleinikoff, Thomas Alexander, Martin, David A., and Motomura, Hiroshi.1995. Immigration
process and policy (American Casebook Series). St. Paul: West Publishing Co.
Cornelius, Wayne A., Martin, Philip L., and Hollifield, James F. 1994. Controlling Immigration:
a Global Perspective. Stanford: Stanford University Press.
Franck, Thomas M. Political question/judicial answers: does the rule of law apply to foreign
affairs? ...................
Goodwin-Gill, Guy S. 1978. International Law and the Movement of Persons Between States.
Oxford: Clarendon Press.
Henkin, Louis. 1972. Foreign Affairs and the Constitution. New York: W.W.Norton &Company.
__________ 1990. Constitutionalism, democracy, and Foreign Affairs. New York: Columbia
University Press.
See Peter Schuck reading on this case. “The transformation of immigration law”, at 58. “In Plyer, the Supreme
Court seems to have begun to redefine the community to include all those whose destines have somehow, even in
violation of our law, become linked with ours”.
51
18
Jacobson, David. 1996. Rights across Borders: Immigration and the Decline of Citizenship.
Baltimore: The Johns Hopkins University Press.
Legomsky, Stephen. 1987. Immigration and the Judiciary: Law and Politics in Britain and
America. Oxford: Clarendon Press.
Ost, François. 199... “Jupiter, Hercule, Hermès: trois modèles du juge”. In: La Force du Droit,
241-272.
Plender, Richard. 1972. International Migration Law. Leiden: A.W. Sijthoff.
Salyer, Lucy E. 1995. Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern
Immigration Law. Chapel Hill: The University of North Carolina Press.
Shapiro, Martin. 1988. Who Guards the Guardians? Judicial Control of Administration. Athens:
The University of Georgia Press.
Soysal, Yasemin. 1994. Limits of Citizenship: Migrants and posnational Membership in Europe.
Chicago: University of Chicago.
Tate, C. Neal, and Vallinder, Torbjörn. 1996. The Global Expansion of Judicial Power. New
York: New York University Press.
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