Class 2: Federal power to exclude and deport

The national government is one of limited, enumerated powers. That, at any rate, is a supposedly bedrock principle of American constitutional law. Thus, when the federal government began to regulate immigration in the late nineteenth century, a question arose: does the Constitution in fact confer on the national government the power to regulate immigration?

This was a question with which the Court had already begun to grapple, in a series of cases concerning state efforts to regulate immigration. But even if those cases suggested that the federal government possessed such power, important questions remained about how far the power extended. Did the government have the power to exclude returning residents at the border? Or to deport resident noncitizens from the nations’s interior?

Reading:

As you read, consider the following questions:

  • Did Chae Chan Ping argue that the federal government lacked authority under the Constitution to exclude noncitizens from the United States? If not, what precisely were the legal claims that he raised against the government’s effort to exclude him?

  • For the Supreme Court, was Chae Chan Ping’s prior residence in the United States legally relevant? It not, why not?

  • In Class 1, we discussed the fact that the Supreme Court today appears to assume that U.S. citizens have a constitutional right to reside in the United States. Can you tell from the various opinions in Fong Yue Ting whether the justices deciding that case thought that the government was prohibited from expelling a U.S. citizen from the nation’s territory?

  • In Fong Yue Ting, why does Justice Field (author of the majority opinion in Chae Chan Ping) dissent? Does he think that the federal government possesses no authority under the Constitution to deport noncitizens?

  • The Justices in Fong Yue Ting appear to disagree about both (1) the substantive scope of Congress’s deportation power under the Constitution, and (2) whether the Constitution requires that certain procedures be followed to resolve Fong Yue Ting’s deportation case. What procedures do the dissenters think are constitutionally compulsory? Why?

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