The Chinese Exclusion Case and How the Court Found a Sovereign Power to Exclude

Here is a strange fact about American law. One of the most useful sentences a border-enforcement conservative can quote was written in defense of one of the least defensible statutes Congress ever passed. The sentence is sound. The statute was a disgrace. A serious citizen has to hold both thoughts at once, and the way to do it is to read the case.

The case is Chae Chan Ping v. United States, decided in 1889 and known to law students as the Chinese Exclusion Case. It is where the Supreme Court first said, in plain words, that the power to keep foreigners out is not a favor Congress borrows from a clause. It is part of what it means to be a nation. That holding still governs the border today. It governs it whether you like the policy in front of you or not, which is exactly why you should understand where it came from.

The Facts, Beginning With a Treaty

Start with the diplomacy, because the case is a fight about a promise. In 1868 the United States and the Chinese empire signed the Burlingame Treaty, named for the American diplomat who helped negotiate it. The treaty recognized the right of free migration between the two countries. Chinese subjects could come, and Americans could go. It also, notably, denied that Chinese subjects had any right to become naturalized citizens, which tells you the bargain was never one of equals.

Chinese labor built much of the western American economy in those years, including stretches of the first transcontinental railroad. Then the boom ended, wages fell, and a political movement in California decided the Chinese were the cause. Much of that movement was plain racial hostility, and I will not dress it up as anything else. Congress responded. In 1880 the two governments signed a new treaty that let the United States "regulate, limit, or suspend" the coming of Chinese laborers, though it was not supposed to prohibit it outright. Then came the Chinese Exclusion Act, signed by President Chester Arthur on May 6, 1882. It suspended the immigration of Chinese laborers for ten years. Arthur had vetoed an earlier version that would have run twenty years.

The act made an exception for laborers already in the country. They could leave and come back, if they carried a certificate proving they had lived here. Chae Chan Ping did exactly that. He had lived in San Francisco since 1875, worked as a laborer, and in 1887 sailed to China with a certificate of return in his pocket. While he was at sea, Congress changed the rules.

The Scott Act of 1888

The Scott Act, passed on October 1, 1888, declared that no Chinese laborer who had left the country could return, and it cancelled every outstanding certificate. Many thousands of people held those papers. Chae Chan Ping arrived in San Francisco on a steamer in October 1888, certificate in hand, and was refused landing. His papers, issued under one law, had been voided by another while the ocean was between him and his home.

Here is the legal puzzle. He had a treaty right on one side and a later statute on the other. The treaty of 1880 had promised that Chinese laborers already here could come and go. The Scott Act took that away. Which one controlled? And behind that sat the larger question: could Congress do this at all? The Constitution lists the powers of Congress in Article I, Section 8. Nowhere does it say "Congress may exclude foreigners."

Hold that thought. It is the whole case.

What Justice Field Held

Justice Stephen Field wrote the opinion for a unanimous Court. His reasoning had two steps.

The first step was the easy one, and it is plain constitutional law. A treaty and an act of Congress are both "the supreme Law of the Land" under Article VI, and when they conflict, the later one controls. This is the last-in-time rule. Congress may break a treaty as far as American courts are concerned. The nation may pay for that diplomatically, but the judge applies the statute.

The second step is the famous one. Field answered the missing-clause objection by saying the power does not need a clause. It is an incident of sovereignty. Every independent nation, he reasoned, has authority over its own territory that is complete and exclusive. If it did not, it would not be independent. A country that cannot decide who crosses its line is a country that has handed part of its government to someone else. The power to exclude, he wrote, belongs to the nation because it is a nation, and the Constitution's grant of the war power, the treaty power and the commerce power gave Congress the means to carry it out.

Field also said that when the government decides that the presence of certain foreigners endangers its peace and security, the courts do not second-guess that judgment. Whether to exclude is a question for the political branches. That is the part critics call the "plenary power doctrine": the idea that Congress and the president have a very broad and largely unreviewable authority over admission.

The Rebuttal a Fair Reader Owes

Now the strongest objection, stated the way its defenders would state it.

One. The Constitution creates a government of enumerated powers. Madison said in Federalist No. 45 that the powers delegated to the federal government are "few and defined." A power that is not written down is a power that was not granted.

Two. The Tenth Amendment reserves everything not delegated to the states or the people. If exclusion is not in Article I, it should not be in Washington's hands.

Three. This particular exercise of the supposed power was aimed at one nationality by name, for reasons of race, and it broke a treaty to do it. A doctrine that blesses that is a doctrine built for abuse.

That is a serious argument, and the third point is simply true. Here is why the first two do not carry the day, taking them in order.

First, enumeration governs what the federal government may do inside our system. It does not tell us where sovereignty over the border lives. The Founders were not inventing a nation from nothing in 1787. They were forming one that already existed in the law of nations, with a Declaration that announced the colonies were "Free and Independent States" with full power to do what independent states do. The Constitution divided the powers of that nation between the federal government and the states. It did not abolish the nation's ability to control its own door. Someone must hold that power. The question is only who.

Second, the Constitution answers the "who" in several places. Article I gives Congress the power "to establish an uniform Rule of Naturalization," to regulate commerce "with foreign Nations," to define offenses against the law of nations, and to declare war. Article II gives the president the treaty power and the duty to receive ambassadors. Article I, Section 10 forbids the states from engaging in foreign policy. Read together, those clauses place the border in the national government and nowhere else. The case made that structure explicit.

Third, a power's existence is not the same as its wisdom. Field's opinion tells us that Congress had the authority. It does not tell us that Congress used it well, and it did not. We should say so plainly. Exclusion by nationality, driven by race, was wrong then and is wrong now. The remedy for a bad law is to repeal the law, and Congress eventually did. The remedy is not to deny that the government has a border.

The Cases That Followed

The principle did not stay in San Francisco. It spread through the next few years, and the follow-on cases show what it does and what it costs.

In Nishimura Ekiu v. United States (1892), a Japanese woman arrived in San Francisco, was found by an immigration inspector to be likely to become a public charge, and was refused landing. She went to court. The Court held that Congress could set the conditions of entry, could assign the decision to executive officers, and that their decision was final unless Congress provided otherwise. It confirmed that an alien at the threshold has no constitutional right to a federal judge's second opinion on admission.

In Fong Yue Ting v. United States (1893), the Court went a step further. Congress had passed the Geary Act in 1892, which extended exclusion and required Chinese laborers already living here to obtain a certificate of residence or face deportation. The Court upheld it, extending the sovereignty reasoning from admission to removal. Justices Field, Brewer and Chief Justice Fuller dissented, each with sharp words. Field, remarkably, dissented against the logic he had himself laid down, because here the people removed had lived in the country lawfully for years. The line between a stranger at the door and a resident of long standing is the one that later courts kept trying to draw.

I think the dissenters had a point worth keeping. Sovereignty over entry is strong. Sovereignty over people who have built lives inside the country has to meet due process, and in later decades the Court said so. The Fifth Amendment protects "any person," not just citizens, and a resident cannot be removed without the procedure the law provides. The exclusion cases are the strongest statement of the border power. They are not the last word on the rights of those already inside it.

The Repeal and What Survived It

The exclusion laws were extended in 1892 and made permanent in 1902. They stayed on the books until December 17, 1943, when Congress repealed them. The repeal came in the middle of the Second World War, with China a wartime ally, and it was an overdue act of decency. The law Congress passed in its place allowed a tiny annual quota of Chinese immigrants and, for the first time, allowed Chinese immigrants to naturalize. Further reform came with the immigration law of 1965, which ended the national-origins quota system altogether.

Here is the point that matters for how we argue today. When Congress repealed exclusion, it did not ask the Court to overturn Chae Chan Ping. It did not need to. The holding that the nation may decide whom to admit stayed in place, because that holding is about who decides, not about what they decide. Congress used the same power to repeal the law that it had used to pass it. The sovereignty principle is the engine, and the policy is only where you point it.

That is why the conservative defense of the principle does not require a defense of the statute. We can say, in the same breath, that the Scott Act was an unjust law and that the power it exercised is real. A people that cannot control its border cannot keep any promise it makes to anyone, including the promise of equal treatment. A people that controls its border for bad reasons has a duty to change its reasons.

Why the Principle Still Matters

Think about what the plenary power doctrine does in the hands of a president today. When a statute such as the one the Court applied in Trump v. Hawaii gives the president authority to suspend entry, the courts defer largely because of the line of reasoning that starts here. See Trump v. Hawaii and the Broad Power Congress Gave Presidents in Section 212. When Congress passes laws on visas, quotas and removal, courts defer for the same reason. The case is the root of a tree that now shades most of immigration law.

You should know that the doctrine has a long record of critics, and some of them are conservatives. They point out that the text of the Constitution speaks of rule-of-law limits on every power, that deference sometimes becomes abdication, and that no power should be beyond all review. The fair answer is that review has returned in many places: for long-term residents, for claims of citizenship, for constitutional rights of those inside our borders. What has not returned, and should not, is the idea that a federal judge may decide who the nation admits.

There is a good deal more history behind the question of who decides. For the earlier period, when the states ran immigration, read Before Ellis Island, the States Ran Immigration and the Court Stopped Them. For the founding-era rules on citizenship, read One Uniform Rule, How the First Congresses Wrote America's Naturalization Laws. And for the Constitution's own words on who counts as a citizen, see Subject to the Jurisdiction Thereof, Six Words at the Center of Citizenship.

The Moral of the Story

The Founders believed that a republic is a body of people who govern themselves and decide who joins them. The Declaration lists, among its grievances, that the King had obstructed the laws for the naturalization of foreigners. Self-government includes the choice of who becomes part of the self. That is a conservative idea and a very old one.

The lesson of the Chinese Exclusion Case is that a good principle can be turned to a bad end, and that the answer is neither to give up the principle nor to excuse the end. A free people may control its borders. A decent people controls them without contempt for the nations and families on the other side. Congress in 1882 managed the first and failed the second. We can do better by remembering both halves of that sentence.

If you want the primary source, read the opinion itself. It is short, it is in the public domain, and it is a better teacher than any summary. Read it with a pencil and ask at every page what the Court is saying about the power and what it is saying about the policy. The two are separable, and keeping them apart is the beginning of wisdom on this subject.

The case in brief

1. The Constitution does not list a power to exclude foreigners, but the Supreme Court held in 1889 that the power is an attribute of national sovereignty that Congress exercises.
2. The Scott Act of 1888 cancelled the return certificates of Chinese laborers, and the Court upheld it because a later statute overrides an earlier treaty in American courts.
3. The follow-on cases, Nishimura Ekiu (1892) and Fong Yue Ting (1893), extended that deference to admission procedures and to removal, over strong dissents.
4. The exclusion laws were unjust, and Congress repealed them in 1943, but the sovereignty holding stayed because it concerns who decides, not what they decide.
5. A conservative can defend the power to control the border and condemn the law that first tested it, and should.

What you can do: read the opinion in Chae Chan Ping v. United States (130 U.S. 581) and mark every sentence about the power separately from every sentence about the policy.