Under “plenary power,” have the people of the United States created a kind of superlegal golem, with powers neither created nor limited by their own fundamental law?
The Court cited Chae Chan Ping a dozen times between 1945 and 1977, but only once in the past 40 years—oddly enough, in that case, as evidence that “[the plenary] power is subject to important constitutional limitations.”
In other words, Chae Chan Ping has become a kind of crazy uncle in the constitutional basement, to be ignored if possible and explained, if necessary, only in the vaguest terms. In that, it is much like Korematsu v. United States and the other Japanese Internment Cases. Those cases approved the wartime roundup and imprisonment in camps of Japanese immigrants and American citizens of Japanese ancestry. Since then, the U.S. admitted it provided false evidence to support the internment; a district court expunged Korematsu’s conviction because the government lied in his case; Congress voted to compensate the survivors; and President Ronald Reagan apologized for the internment.
But the case has never been overruled; it survives as a grin without a cat, an emergency power in search of an emergency. As Justice Robert Jackson wrote at the time, the precedent “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” The ghost of Korematsu has come out of the attic recently, as American leaders begin to talk seriously about camps and roundups and mass deportations. So, too, has the ghost of Chae Chan Ping, in the administration’s legal claims that Trump’s preferences as to immigrant streams may not be reviewed by the courts.
The Court’s reticence about these cases, UNLV’s Kagan explained in an interview, comes out of “a kind of dance between the branches [of government]—not closing doors all the way, with an understanding that there will be some discretion by the other branches. But discretion is not what we have come to expect from the Trump administration.”
Chin, of UC Davis, told me that “there is no question that the ghost of the Chinese Exclusion cases haunts the travel ban case and the travel ban policy. The courts have to figure out if these century-old cases are still good law, and the country has to figure out if our discriminatory immigration policy dating back to 1790 is consistent with our current values.”
The Court is likely to decide this case without explicitly reaching that issue. But judicial decisions, like magic spells, often summon powers that transcend the words they use. We will get a travel ban decision soon, perhaps by summer. That opinion may give a hint whether Chae Chan Ping’s ghost haunts us still, or whether this mistreated laborer can finally take his rest.