A little more than a century ago, in what are known as the Chinese Exclusion Cases, the Supreme Court said that the political branches possess sweeping powers over noncitizens who are seeking to enter the United States. The Court’s reasoning for granting Congress and the president these expansive powers wasn’t just because of some special status of the border. Rather, the Chinese Exclusion Cases were rooted in racism and xenophobia. The Court believed that the political branches should have the power to decide whether foreigners of another race pose a threat to the United States.
Today, a conservative majority on the Supreme Court chose to embrace this reasoning rather than reject it, in a case about the expedited-removal system. Expedited removals allow the executive branch to deport people without any judicial review of whether they are deportable or whether instead they are entitled to remain in the United States. Under the existing expedited-removal scheme, the administration could quickly remove anyone who it determines is a noncitizen and who was apprehended within two weeks of entering the United States and within 100 miles of the border. In Department of Homeland Security v. Thuraissigiam, announced today, the Court held that these removals do not violate the constitutional guarantees of habeas corpus or due process. If the Constitution applied to those subjected to expedited removal, there would have been little doubt that the system was unconstitutional. The suspension clause of Article I of the Constitution prohibits Congress from denying individuals the ability to file habeas petitions challenging their detentions. And the due-process clause of the Fifth Amendment entitles people to notice and a hearing, and sufficient process to guard against risks of error. That is, of course, if these clauses apply at all.