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.
Expedited removals begin when an immigration officer determines that a noncitizen lacks legal authorization to be in the United States. That is also how expedited removals end—noncitizens are removed “without further hearing and review,” subject to one narrow exception. (If a noncitizen indicates an intent to apply for asylum, then an asylum officer will assess their eligibility for asylum. The asylum officer’s determination is also final.)
The government defended the expedited-removal system by arguing that its expansive immigration powers are not subject to constitutional constraints such as the suspension clause and the due-process clause. That idea originated in the Chinese Exclusion Cases of 1889 and 1893, which suggested that the Constitution does not apply to noncitizens who are seeking entry into the United States or to noncitizens challenging deportation. The cases upheld laws that barred Chinese nationals from reentering the United States, as well as laws that deported Chinese laborers who did not have a certificate of residence or a white citizen willing to testify on their behalf.
At the time, the Court upheld the laws on the ground that courts should not second-guess the political branches’ response to “vast hordes of … people crowding in upon us.” The Court defended this principle with further racist vitriol: “If the government of the United States … considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … its determination is conclusive.”
In 2016, the U.S. Court of Appeals for the Third Circuit relied on these doctrines to uphold the expedited-removal system. That court reasoned that “an alien … has no constitutional rights regarding his application” to enter the United States, and that noncitizens therefore have no right to judicial review of their detentions or removals.
The Supreme Court had other options. The Court could have instead turned to Boumediene v. Bush, a 2008 Supreme Court decision that found the suspension clause applies to noncitizens who are outside the territorial sovereignty of the United States (specifically at Guantánamo Bay). The Court could now have applied this same logic to persons who are physically, but perhaps not lawfully, present in the United States. But no, the Court instead turned to the Chinese Exclusion Cases, which provide an excuse to ignore Boumediene and other cases. Citing a slew of cases that relied on the Chinese Exclusion Cases, the Court concluded that undocumented immigrants lack rights under the due-process clause, and that the Constitution guarantees no right to judicial review of removal proceedings to deport people from the United States, even though removals can in some cases amount to a death sentence. Justice Brett Kavanaugh’s predecessor Justice Anthony Kennedy authored Boumediene. It is hard to think that Kennedy would have joined such a broad evisceration of his prior decision.
The Chinese Exclusion Cases have never been overruled, which is what allowed the Court to rely on the ideas they expressed. As long as these cases remain good precedent, administrations will be tempted to embrace them. And sometimes they will: Both the Obama and the Trump administrations defended the expedited-removal system.
Now that the Court has signed off on the government’s theory that noncitizens who are physically but not lawfully present are not entitled to at least some constitutional rights, it has subjected immigrant communities to the Trump administration’s cruel whims. The Trump administration has announced that it is expanding the expedited-removal system to apply to noncitizens who are apprehended anywhere in the United States, not just noncitizens like Vijayakumar Thuraissigiam, who was apprehended 25 yards from the border. Just a few days ago, the U.S. Court of Appeals for the D.C. Circuit ruled that the administration could expand the expedited-removal system without having to go through the usual administrative procedures, because the attorney general possessed unreviewable discretion over expedited removals. The Supreme Court’s decision has given the administration the green light to subject any person it designates as an undocumented immigrant to the expedited-removal system based on a set of legal doctrines grounded in notions of racial superiority and xenophobic fear.