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[LEGAL] Fong Yue-Ting v. U.S. / Supreme Court & the Right of Aliences

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  • madchinaman
    http://www.tqnyc.org/NYC040546/timeline/TQ_timeline.htm http://www.tqnyc.org/NYC040546/timeline/1892.html 1892 - The Fond Yue-Ting v. United States, the
    Message 1 of 1 , Sep 20, 2005
      http://www.tqnyc.org/NYC040546/timeline/TQ_timeline.htm
      http://www.tqnyc.org/NYC040546/timeline/1892.html

      1892 - The "Fond Yue-Ting v. United States," the Chinese community
      raises money to test the constitutionality of exclusionary
      legislation


      -

      A second case, Fong Yue Ting v. United States (1893), confirmed the
      right of the Congress to treat aliens as it wished. It became the
      constitutional bedrock for all subsequent questions as to Congress'
      rights in regard to immigrants and aliens. Fong and two other
      Chinese men were arrested for violating provisions of the 1892
      amendments to the Chinese Exclusion Act.

      The extension not only continued to bar Chinese laborers from
      American shores but required those already in the United States to
      obtain a certificate of residence from an internal revenue officer
      stating that they were legally entitled to be here.

      A person of Chinese ancestry caught without such certification was
      to be deported by a federal judge unless he could prove with the aid
      of "at least one credible white witness" that he was a resident of
      the United States at the time of the passage of the law and that he
      had, for a valid reason, been unable to obtain the required
      document. Fong Yue Ting, though a permanent resident of New York
      City since 1879, had never bothered to register and was arrested.

      Justice Horace Gray, summarizing for the Court, noted that another
      defendant who tried to get the necessary certificate could not do so
      because "the witnesses whom he produced to prove that he was
      entitled to the certificate were persons of the Chinese race and not
      credible witnesses." Justice Gray continued: Congress, having the
      right, as it may see fit, to expel aliens of a particular class, or
      to permit them to remain, has undoubtedly the right to provide a
      system of registration and identification of the members of that
      class within the country, and to take all proper means to carry out
      the system which it provides.


      Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893)

      A 6-3 majority had rejected the petitioners' case. In substance, the
      majority declared that aliens remained "subject to the power of
      Congress to expel them, or to order them to be removed and deported
      from the country whenever in its judgment their removal is necessary
      or expedient for the public interest."

      The decision led to blistering dissents from Justices David J.
      Brewer and Stephen Field that still make a compelling argument.
      Brewer denied that ere existed any unrestrained constitutional power
      to banish resident aliens since in the Constitution "the power to
      remove resident aliens isconfessedly not expressed."

      In addition, the statute of 892 specifically stipulated the
      conditions under the Chinese might be "arrested and, without
      punished by banishment." This, Brewer declared,constituted a
      deprivation of liberty without due process of law. He also observed:
      It is true this statute is directed against the obnoxious Chinese;
      but if the power exists, who shall say it will not be exercised
      tomorrow against other classes a other people? Fong Yue ting v.
      United States, 149 U.S. 698, 743 (1893)

      Justice Field developed the constitutional points even further: If
      aliens had no rights under the Constitution, they might not only be
      banished, but even capitally punished without a jury or the other
      incidents to a fair trial. But, so far has a contrary principle been
      carried, in every part of the United States, that, except on
      charges, of treason, an alien has, besides all the common
      privileges, the special one of being tried by a jury of which one-
      half may also be aliens.

      Fong Yue Ting v. United States, 149 U.S. 698, 746 (1893)Later Courts
      have consistently reaffirmed the majority viewpoint in Fong that
      Congress has absolute discretion in deciding whom to admit, and whom
      to ban from, this country. And as if to underscorethe confidence
      that the majority had in its position, three years later Justice
      George Shiras, Jr., reiterated: No limits can be put by the courts
      upon the power of Congress to protect, by summary methods, the
      country from the advent of aliens whose race or habits render them
      undesirable as citizens, or to expel such if they have already found
      their way into our land and unlawfully remain therein.


      ==============================================



      The Supreme Court and the Rights of Aliens
      Leonard Dinnerstein, University of Arizona
      http://66.102.7.104/search?
      q=cache:V4jg6X9ohHEJ:www.apsanet.org/imgtest/SupremeCourtAlienRight.p
      df+%22Fong+Yue-Ting%22&hl=en


      The United States has always been "a nation of immigrants." It is
      quite striking, therefore, to note how little attention the Founding
      Fathers gave to the subject when preparing the fundamental law of
      the new nation in 1787. When the framers met to write a
      constitution, they saw little reason to restrict the relatively
      small number of Europeans who arrived periodically and contributed
      the nation's wealth.

      Moreover, they could not imagine that in a land as large as the
      United States immigration would ever constitute a problem or a
      source of concern. The young republic needed to bring people in, not
      keep them out.Statements regarding immigrants appear in Article I in
      the Constitution. Section 8, clauses 3 and 4,read, in part, that the
      Congress shall have the power "to regulate commerce with foreign
      nations, and . to establish an uniform rule of naturalization."

      Section 9, clause 1, begins, "the migration or importation of such
      persons as any of the States now existing shall think proper to
      admit, shall not be prohibited by the Congress prior to the year one
      thousand eight hundred and eight."

      The latter section, now obsolete, served to permit the importation
      of slaves for twenty years after the adoption of the Constitution.
      From these brief statements, and from the Supreme Court's assumption
      of the power to interpret the meaning of the Constitution in Marbury
      v. Madison (1803), there has developed an elaborate body of
      immigration law which gives Congress practically unlimited authority
      to decide who may enter the United States and under what conditions
      they may remain.

      In that land that proudly proclaims its immigrant heritage, the
      Supreme Court, over the years, has consistently allowedCongress and
      the executive branch of the federal government the right to admit,
      exclude or banish non-citizens on any basis they chose including
      race, sex, and ideology. As Justice John Paul Stevens put it in
      1976, "in the exercise of its broad power over naturalization and
      immigration, Congress regularly makes rules that would be
      unacceptable if applied to citizens." (Matthews v. Diaz (1976)).

      Although virtually any regulations in regard to immigrants and
      aliens have been tolerated if made by the federal government,
      similar activities by state governments have been carefully
      scrutinized, and frequently rejected, by different majorities of the
      Supreme Court.

      The two categories of foreigners-immigrants and aliens-are not
      interchangeable. Immigrants are people who enter the United States
      legally indicate that they plan to spend a considerable amount of
      time in this country. They can become citizens through the process
      of naturalization, a series of steps prescribed by Congress,
      including residence requirements, examinations, and loyalty
      oaths.Citizens have rights under the Constitution not accorded to
      non-citizens.

      Thus, once immigrants achieve citizenship, they receive additional
      constitutional protections, although not necessarily the identical
      safeguards of people born in this country. For example, naturalized
      immigrants may be stripped of their citizenship and deported to
      their native country for certain crimes.

      Aliens include immigrants as well as others who enter the United
      States legally or otherwise, who work, study, or visit for a
      specified or indeterminate period of time, or who accompany people
      so engaged. They are, by definition, not citizens of the United
      States and therefore do not have the same constitutional protections
      as citizens.

      The Supreme Court is often called upon to determine exactly which
      constitutional protections noncitizens do have. In this article,- we
      will deal only with the rights of aliens, that is, non-citizens. The
      Supreme Court justices handle several categories of immigrants and
      aliens.

      They decide whether established federal and state laws and policies
      are constitutional and within the province of either law-maker or
      administrator to carry out. Many times, however, the justices
      refrain from indicating their personal views of the reasonableness
      or appropriateness of any given action, arguing - that it is not
      within their purview to do so as long as a constitutional basis
      exists for the decision and there is a compelling government
      interest for the action.

      Although the court has shown great deference to Congress in this
      area of law, still citizens and aliens alike have access to a
      judicialsystem that tries to keep governmental actions within the
      bounds of our constitutional framework. Immigration did not loom as
      a major constitutional issue during the first century of the
      federalgovernment.

      To be sure, laws concerning naturalization were passed in 1790 and
      1795, and fear of the "radical" French in our midst led Congress, in
      1798, to authorize President John Adams to deport any foreigners
      found guilty of seditious activities. Adams never used the authority
      granted to him,which expired in 1800, and the fear of foreigners
      soon abated.

      Aside from these bills, however,Congress merely required that
      accurate statistics of grant arrivals be recorded-and customs
      officials began doing so in 1820.In the 1830s and 1840s, a large
      surge of Irish refugees escaping the potato famine at home descended
      upon American shores. New York State and Massachusetts tried to
      limit immigration by passing laws regulating and taxing passenger
      shipping companies.

      In both 1849 (the PassengerCases) and 1876 (Henderson v. New York)
      the Supreme Court rejected these attempts. In the latter case,
      Justice Samuel F. Miller declared that the regulation of immigration
      Was the exclusive right ofCongress, and he particularly emphasized
      that "whenever the statute of a State invades the domainof
      legislation which belongs exclusively to the Congress of the United
      States, it is void, no matterunder what class of powers it may
      fall."Congress and the Rights of Aliens, 1882-1921

      The Henderson decision came at a time when several states were
      beginning to show alarm about their alien residents. California, in
      particular, suffered several years of severe economic depression,
      which bred resentment on the part of Caucasians about the Chinese in
      the state who worked for low wages.

      A working class movement led by Dennis Kearney demanded that "The
      Chinese Must Go!" and, surprisingly, people from all over the cot
      enthusiastically endorsed this sentiment. Congressresponded with the
      Chinese Exclusion Act of 1882, which proved to be the first of many
      laws during the next forty-two years that restricted the
      opportunities of foreigners who wished to settle in thiscountry.

      The United States Supreme Court, an institution not oblivious to the
      political ramifications of itsdecisions, responded to the first of
      the immigration restriction laws in a way agreeable both to the
      public and the Congress. It upheld Congress' right to decide which
      aliens might be admitted to the United States and under what
      conditions they might remain.

      In a series of cases over the next two decades, Court decisions so
      strengthened Congress, unlimited powers in admission or exclusion
      offoreigners that subsequent blocs of justices merely enhanced and
      reinforced those early judgments.Thus the judicial interpretation of
      the Exclusion Act has dictated the substance of immigration
      regulation to the present day.

      The justices did not rule on the validity of the Chinese Exclusion
      Act until 1889. Chae Chan Ping, a Chinese laborer, had lived in San
      Francisco from 1875 until June, 1887 when he returned to China to
      visit relatives. Before leaving the United States he had obtained a
      certificate which guaranteed thathe would be readmitted to the
      country. Yet, when Chae returned on October 8,1888, the customs
      officer refused him entry because Congress had passed an amendment
      to the Chinese Exclusion Act of 1882 (which originally suspended
      immigration of Chinese laborers to the United States for a ten-year
      period) annulling reentry certificates after October 1, 1888.

      Therefore Chae's right to be readmitted had been cancelled seven
      days before his return. He appealed to the courts and his-attorney
      argued that although Congress could restrict immigration, Chae had
      a "vested right" to be readmitted. In addition, the lawyer claimed
      that the amendment barring reentry of laborers who had left the
      country temporarily constituted an ex post facto bill which was ipso
      facto unconstitutional.Still, after the Court heard the arguments,
      it deferred to the will of Congress. Justice Stephen Field,stated
      that the act in question was passed because customs officials had
      discovered that certificates of reentry had been exchanged and that
      newly arrived immigrants carried fraudulent documents.

      He also affirmed Congress' right to revoke permission for foreigners
      to remain in this country whenever it wished to do so. Speaking for
      the Court, Field said:That the government of the United States . can
      exclude aliens from its territory is a proposition which we do not
      think open to controversy.

      Jurisdiction over its own territory to that extent is an incident of
      every independent nation. It is a part of its independence. If
      itcould not exclude aliens it would be to that extent subject to the
      control of another power.Chinese Exclusion Cases, 130 U.S. 581. 603-
      604 (1889)

      -

      A second case, Fong Yue Ting v. United States (1893), confirmed the
      right of the Congress to treat aliens as it wished. It became the
      constitutional bedrock for all subsequent questions as to Congress'
      rights in regard to immigrants and aliens. Fong and two other
      Chinese men were arrested for violating provisions of the 1892
      amendments to the Chinese Exclusion Act.

      The extension not only continued to bar Chinese laborers from
      American shores but required those already in the United States to
      obtain a certificate of residence from an internal revenue officer
      stating that they were legally entitled to be here.

      A person of Chinese ancestry caught without such certification was
      to be deported by a federal judge unless he could prove with the aid
      of "at least one credible white witness" that he was a resident of
      the United States at the time of the passage of the law and that he
      had, for a valid reason, been unable to obtain the required
      document. Fong Yue Ting, though a permanent resident of New York
      City since 1879, had never bothered to register and was arrested.

      Justice Horace Gray, summarizing for the Court, noted that another
      defendant who tried to get the necessary certificate could not do so
      because "the witnesses whom he produced to prove that he was
      entitled to the certificate were persons of the Chinese race and not
      credible witnesses." Justice Gray continued: Congress, having the
      right, as it may see fit, to expel aliens of a particular class, or
      to permit them to remain, has undoubtedly the right to provide a
      system of registration and identification of the members of that
      class within the country, and to take all proper means to carry out
      the system which it provides.


      Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893)

      A 6-3 majority had rejected the petitioners' case. In substance, the
      majority declared that aliens remained "subject to the power of
      Congress to expel them, or to order them to be removed and deported
      from the country whenever in its judgment their removal is necessary
      or expedient for the public interest."

      The decision led to blistering dissents from Justices David J.
      Brewer and Stephen Field that still make a compelling argument.
      Brewer denied that ere existed any unrestrained constitutional power
      to banish resident aliens since in the Constitution "the power to
      remove resident aliens isconfessedly not expressed."

      In addition, the statute of 892 specifically stipulated the
      conditions under the Chinese might be "arrested and, without
      punished by banishment." This, Brewer declared,constituted a
      deprivation of liberty without due process of law. He also observed:
      It is true this statute is directed against the obnoxious Chinese;
      but if the power exists, who shall say it will not be exercised
      tomorrow against other classes a other people? Fong Yue ting v.
      United States, 149 U.S. 698, 743 (1893)

      Justice Field developed the constitutional points even further: If
      aliens had no rights under the Constitution, they might not only be
      banished, but even capitally punished without a jury or the other
      incidents to a fair trial. But, so far has a contrary principle been
      carried, in every part of the United States, that, except on
      charges, of treason, an alien has, besides all the common
      privileges, the special one of being tried by a jury of which one-
      half may also be aliens.


      Fong Yue Ting v. United States, 149 U.S. 698, 746 (1893)

      Later Courts have consistently reaffirmed the majority viewpoint in
      Fong that Congress has absolute discretion in deciding whom to
      admit, and whom to ban from, this country. And as if to
      underscorethe confidence that the majority had in its position,
      three years later Justice George Shiras, Jr., reiterated: No limits
      can be put by the courts upon the power of Congress to protect, by
      summary methods, the country from the advent of aliens whose race or
      habits render them undesirable as citizens, or to expel such if they
      have already found their way into our land and unlawfully remain
      therein.


      Wong Wing v. United States, 163 U.S. 228, 237 (1896)

      Although some rulings of the Supreme Court seem inhumane, a majority
      of the justices repeatedlyallowed Congress and the executive branch,
      acting on powers delegated to it by the federallegislature,
      considerable independent authority. Such complete judicial
      acceptance is unusual but inthis field of litigation the Court has
      been consistent.

      No more arbitrary example may be given than The Japanese Immigrant
      Case in which Kaoru Yamataya, who could speak no English, was
      detainedat port because the customs officer thought she might be a
      pauper with no means of visible support.In what seems like shocking
      and unethical behavior, the customs officer deceived the helpless
      woman.

      Her attorney described her experience in this way:Here is a person
      found dwelling within the United States; she is arrested and
      imprisoned by a ministerial officer; she is not permitted to see her
      friends or to consult with her attorneys; she is unable to speak or
      understand our language, and is ignorant of the cause of her
      imprisonment, and ignorant of the fact that any investigation is
      being made concerning her right to liberty.

      The officer does not give her any notice of the proceedings nor any
      opportunity to be heard, but goes about secretly collecting e
      against her, considering only such evidence as when unexplained will
      suit his purpose. He takes advantage of her ignorance of our
      language and makes her give unintentional answers to questions which
      she does not understand.

      He states that he is holding her to appear as a witness in a
      criminal case against another party, thus deceiving her attorneys as
      to his intention. As the result of the investigation made by this
      ministerial officer in his combined capacity of prosecutor, judge
      and jury, he makes a finding against the appellant.The Japanese
      Immigrant Case, 189 U.S. 186, 90-91 (1903)

      Acknowledging the veracity of the attorney's brief, Justice John
      Marshall Harlan nevertheless declared that "these considerations
      cannot justify the intervention of the courts." Harlan's decision
      not only upheld congressional authority but reflected, as well, the
      growing American concern with the numbers of aliens arriving in this
      country.

      To be sure, in the early twentieth century most of the foreigners
      came from Southern and Eastern Europe and much of the opposition to
      immigration centered upon them. Nevertheless, Asians loomed as a
      major problem inthe minds of West Coast and other racists, who were
      numerous and influential. Thus Congress once again revised its
      naturalization ion statutes in 1917 granting the opportunity of
      applying for citizenship only to free white persons and those of
      African ancestry. (Most Asians had already been barred by earlier
      legislation.)

      Then in two cases, Ozawa v. U.S. (1922) and U.S. v. Bhagat Singh
      Thind (1923), the Court ruled that neither Japanese nor Hindus of
      full Indian blood were caucasians and hence those people were
      ineligible for citizenship.The decade beginning with American entry
      into World War I proved particularly harsh for allnonwhite, non-
      Anglo-Saxon, and non-Protestants in the United States. "Americanism"
      came to mean the elimination of foreigners, foreign ideologies, and
      foreign characteristics and gave rise to, amongothers, the passage
      of the Espionage and Sedition Acts in 1917 and 1918, respectively,
      which made almost any criticism of the war or war effort a crime.
      The bills were repealed in 1920 but the new statute still allowed
      for the banishment of undesirable aliens.

      The Secretary of Labor then orderedthe deportation of foreigners
      convicted of violating the Espionage and Sedition Acts even though
      the two laws had been discarded. For the Court, Chief Justice
      William Howard Taft upheld the Secretary of Labor's interpretation
      of his responsibilities: Congress was not increasing the punishment
      for the crimes of which petitioners had beenconvicted, by requiring
      their deportation if found undesirable residents.

      It was, in the exercise of its unquestioned right, only seeking to
      rid the country of persons who had shown by their career that their
      continued presence here would not make for the safety or welfare of
      society.


      Mahler v. Eby, 264 U.S. 32, 39 (1924)

      Anxiety about the number and quality of aliens in the United States
      had been continually iced since the end of the nineteenth century.
      Congress responded to these concerns by passing series of
      restrictive immigration acts depriving entry to anarchists,
      criminals, people with certain diseases, some Asians, and
      illiterates.

      But in 1921 a more stringent bill limited newcomers to 3 percent of
      their national total in the United States in 1910; subsequent
      legislation in 1924 narrowed opportunities further by stipulating 2
      percent, moving the base year back to 1890 which was before most of
      the Southern and Eastern Europeans had arrived, and barring the
      entry of Asians altogether.

      This legislation gave an unambiguous preference to immigrants of
      Northern European descent and discriminated particularly against
      Jews, Slavs, and Italians. With Congress so clear about its
      intentions, there was no further need for the Court to get involved
      again with federalpolicies towards immigrants until the emergence of
      the "Red Scare" after World War II.


      State Laws and the Rights of Aliens

      The Supreme Court, which always went along with Congress' authority
      to set conditions for entry into the United States or banishment
      from it, originally prohibited states from putting non-citizens ata
      legal disadvantage. States often wanted to give greater protection
      to citizens than to aliens and, at first, the Court was quite
      definite in proclaiming that they could not do so.

      Later, it retreated from this position. In 1880 San Francisco's
      Board of Supervisors passed a regulation requiring special
      permission for individuals to operate laundries in the city. At the
      time 240 of the 320 laundries were owned and operated by people of
      Chinese ancestry. As additional individuals began applying for these
      licenses,the Board of Supervisors turned down the petitions of more
      than two hundred Chinese persons but quickly granted the requisite
      permission to eighty non-Chinese applicants.

      Yick Wo, an alien residentin California for 22 years, took legal
      action to receive one of the licenses, and his case eventually
      reached the Supreme Court. Justice Stanley Matthews, in what has
      become the bedrock opinion granting equal protection of the laws to
      non-citizens, supported Yick Wo and denounced the administration of
      the San Francisco ordinance.

      The Supreme Court thereby established the principle that the
      Fourteenth Amendment to the Constitution requires states to grant
      equal protection of the laws to all persons "without regard to any
      differences of race, of color, or of nationality." Matthews
      asserted: Though the law itself be fair on its face and impractical
      in appearance, yet, if it is applied and administered by public
      authority with an evil eye and an unequal hand, so as practically to
      make unjust and illegal discriminations between persons in similar
      circumstances then this constitutes denial of equal justice.


      Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1885)

      Almost thirty years later, an Arizona statute blatantly
      discriminated against foreigners in their choice of employment and
      once again the Supreme Court stood firm. The law called for 80
      percent of all workers in any company, corporation, or business to
      be either qualified electors or native born citizens.

      As a result of this act, Mike Raich, a citizen of Austria employed
      as a cook in a Bisbee restaurant, lost his job because 70 percent of
      the employees there were foreigners. He sued his employer, William
      Truax, for reinstatement and the case went up to the Supreme Court.
      Justice Charles Evans Hughes, for the majority, declared state
      might "deny its lawful inhabitants, because of their race or
      nationality, the ordinary means of earning a livelihood." He then
      pointed out: The authority to control immigration-to admit or
      exclude aliens-is vested solely in the federal government.

      The assertion of an authority to deny to aliens the opportunity of
      earning a livelihood when lawfully admitted to the state would be
      tantamount to the assertion of the right to deny them entrance and
      abode, for in ordinary cases they cannot live where they cannot
      work. And if such a policy were permissible, the practical result
      would be that those lawfully admitted to the county under the
      authority of the acts of Congress, instead of enjoying in a
      substantial sense and in their full scope the privileges conferred
      by the admission, would be segregated in such of the states as chose
      to offer hospitality.


      Truax v. Reich, 239 U.S. 33, 42 (1915)

      But the reasoning that guided the Court in Yick Wo and Truax
      flickered on an otherwise bleak landscape. In the early twentieth
      century the Court recognized that some special public interestmight
      exist to modify this broad policy of employment. Thus in Atkins v.
      Kansas (1903), decided a decade before Truax, and Heim v. McCall
      (1915), decided a year after the Arizona case, the Justices allowed
      that states might give preference to citizens for employment in
      public works.

      Then, in the rabidly anti-alien decade of the 1920s, the justices
      sanctioned a Cincinnati ordinance barring non-citizens from
      operating pool rooms and billiard parlors. In presenting the city's
      case, the Cincinnati attorney's description of these places of
      recreation was so vile that one wonders why the city government did
      not outlaw them altogether.

      The majority opinion summarized his argument: Billiard and pool
      rooms in the City of Cincinnati are meeting places of idle and
      vicious persons;. . . they are frequented by lawbreakers and other
      undesirable persons, and contribute to juvenile delinquency; .
      numerous crimes and offenses have been committed in them and
      consequently they require strict police surveillance; non-citizens
      as a class are less familiar with the laws and customs of this
      country than native born and naturalized citizens; the maintenance
      of billiard and pool rooms by them is a menace to society and tothe
      public welfare, and that the ordinance is a police regulation passed
      in the interest of and for the benefit of the public.


      Clarke v. Deckenbach, 274 U.S. 392, 304 (1927)

      Court majority, while acknowledging the Fourth Amendments
      prohibition against "irrational discrimination against aliens,"
      nonetheless continued: It does not follow that alien race and
      allegiance may not bear in some instances such a relation to a
      legitimate object of legislation as to be made the basis of a
      permanent classification.


      Clarke v. Deckenbach, 274 U.S. 392, 396 (1927)

      Since the justices were willing to approve different treatment for
      citizens and aliens based on classifications affected with a public
      interest, and since they acknowledged that local authorities knew
      more about conditions in their own communities than did the justices
      in Washington, theSupreme Court upheld the Cincinnati pool room
      ordinance. Reasoning of this kind also allowed states deny aliens
      hunting and fishing licenses as well practicing in professions such
      as law and medicine. But twenty-one years after Clarke, in the more
      liberal post-World War II atmosphere towardimmigrants and
      minorities, the Court ostensibly put an end to several blatantly
      prejudicial state statutes.

      One case concerned the issuance of fishing licenses to "aliens
      ineligible for citizenship." Prior 1943, California granted fishing
      licenses to any qualified person; after the Japanese Americans had
      been relocated inland during World War II, the California Fish and
      Game Commission adopted a proviso prohibiting the issuance of
      licenses to "alien Japanese."

      Two years later, in 1945, the stipulation changed to "persons
      ineligible for citizenship," although people of Japanese ancestry
      were obviously the target.

      When the case reached the Supreme Court, the state argued that the
      prohibition was basically a fish conservation measure; Justices
      Frank Murphy and Wiley Rutledge demolished that argument with the
      observation that the amendment in question came out of a legislative
      committee concerned with Japanese resettlement problems, not one
      interested in fish.

      But Justice Black, for the Court, succinctly argued: It does not
      follow, as California seems to argue, that because the United States
      regulates immigration and naturalization in part on the basis of
      race and color classifications, a state can adopt one or more of the
      same classifications to prevent lawfully admitted aliens within its
      borders from earning a living in the same way that other state
      inhabitants earn their living.


      Takahashi v. Fish and Game Commission, 334 U.S. 410, 418-419 (1948)

      That decision defeated the last attempt of any state to bar Asians
      from lawfully engaging invocations for which they possessed the
      necessary skills and qualifications.

      The only area in which the Supreme Co had consistently upheld state
      discrimination againstimmigrants regarded restrictions against
      foreigners owning land. As early as 1879, the Supreme Court
      acknowledged that "by common law, an alien cannot acquire real
      property" (Phillips v. Moore), and this dictum was repeated several
      times thereafter.

      In 1913 California, in one of its periodiccrests of anti-Asian
      feelings, passed a law forbidding "aliens ineligible for
      citizenship". (i.e. Asians)from acquiring agricultural lands. Many
      Japanese immigrants evaded this law by buying property fortheir
      American-born children and either acting as custodians themselves or
      hiring non-Asian Americans to manage their children's holdings.Fred
      Oyama was born in California in 1928.

      His father started buying land for him in the 1930s and during the
      child's minority the elder Oyama served as guardian. In 1942 the
      federal government evacuated all Japanese persons and Americans of
      Japanese descent on the West Coast and shipped them to inland
      relocation centers.

      While the Oyamas were in one of these centers, the state of
      California filed a petition with the courts claiming that the elder
      Oyama had deliberately tried to evade the state's Alien Land Laws by
      purchasing agricultural grounds in his son's name. The California
      courts agreed and allowed the state to confiscate Fred Oyama's
      property.

      After the Japanese internment ended, Oyama sued to regain his son's
      property and the case reached the Supreme Court. Chief Justice Fred
      Vinson delivered the Court's verdict: In our view of the case, the
      State has discriminated against Fred Oyama; the discrimination is
      based solely on his parents' country of origin; and there is absent
      the compelling justification which would be needed to sustain
      discrimination of that nature.

      He then went on: Fred Oyama. faced at the outset the necessity of
      overcoming a statutory presumption that conveyances financed by his
      father and recorded in Fred's name were not gifts at all . Fred was
      assumed to hold title for the benefit of his parent.


      Oyama v. California, 332 U.S. 633, 640, 641 (1948)

      Although the majority of the court was not quite willing to overturn
      the legality of California's Land. Law (which Congress made
      unnecessary in 1952 when it granted people of Japanese ancestry the
      right to become citizens), Justices Murphy and Rutledge called the
      statute "nothing more than an outright racial discrimination."
      Congress and the Rights of Aliens in the Post-War Era

      The Oyama case showed how far both the justices and society had come
      since the 1920s when both the Court and Americans in general were
      eager to justify circumscribing the rights of aliens. To acertain
      extent, the changed atmosphere reflected the liberal views of
      Justices Hugo Black, William 0. Douglas, Frank Murphy, and Wiley
      Rutledge, whom President Franklin D. Roosevelt had appointed tothe
      bench. But Roosevelt's successor, Harry S. Truman, also cared about
      the welfare of immigrants and aliens- even if his own Court
      appointees did not always seem equally concerned- and the temper of
      the United States was undergoing change.

      The wartime experiences of many adults contributed to the new
      climate of opinion. The managing editor of Yank, a World War II army
      publication, wrote in 1945 that many the soldiers that he had known,
      especially those had served overseas, were conscious of the that
      changes had to take place in, this country, especially "the need for
      wiping out racial and religious discrimination."

      Against the rigidity of the restrictive immigrationlegislation of
      the 1920s, one contrast the War Brides Act of 1946 and the Displaced
      Persons Acts of 1948 and 1950 brought more than 400,000 foreigners
      to this country-before Truman's tenure in the White House ended in
      1953.

      The Truman era also saw the Court void restrictive housing covenants
      (Shelly v. Kraemer (1948)), and whittle away at separate-but-equal
      educational facilities (McLaurin.v. Oklahoma State Regents (1950)),
      and (Sweat v. Painter (1950)).

      Yet, despite the greater concern for minorities and immigrants, a
      wave of paranoia enveloped the country as the "Red Scare"-fear of
      Communist subversion and encroachment-dominated the
      politicalatmosphere. And in this context, the Court was once again
      called upon to adjudicate Congress' right to banish aliens from our,
      midst with what possibly might have been insufficient justification.

      Between 1950 and 1952, three cases came before the Supreme Court in
      which aliens who married United States citizens or lived and sired
      families in the United States were prohibited entry or re-entry into
      this country on the basis of secretly-obtained evidence that their
      presence might be detrimental to the nation's welfare.

      From the information. that became public, it appears that the fear
      of communism and its potential influence in this country proved
      decisive. A majority of thejustices, although only a bare majority,
      maintained that "it is not within the province of any court, unless
      expressly authorized by law, to review the determination of the
      political branch of the Government to exclude a given alien."
      (Knauff v. Shaughnessy (1950)).

      All three aliens lost their cases. Public fear of communism subsided
      during the next decade but not before Congress passed the McCarran-
      Walter Immigration Act in 1952.

      Although the bill continued most of the major restrictions of its
      1924 predecessor, it did break new ground by giving all nations of
      the world minimum immigration quotas of 100 persons per year, by
      ending the ban against Asians becoming immigrants and citizens, and
      by permitting aliens already in the country, particularly the
      Japanese, the opportunity, of applying for citizenship according to
      established procedures.During the next decade, under the presidency
      of Lyndon B. Johnson, Americans witnessed the passage in 1965 of the
      most liberal immigration bill of the twentieth century.

      All national quotas were replaced with provisions emphasizing family
      unification and job needs in the United States;limits of 20,000
      emigrants per year from any one country were instituted. The altered
      stipulations paved the way for more Asians and Southern and Eastern
      Europeans to enter the United States.

      This new spirit of tolerance and welcome pervaded the American scene
      and once again the Supreme Court seemed to respond to the political
      atmosphere. Thus when Arizona and Pennsylvania tried to discriminate
      against aliens in the distribution of welfare benefits, the Court
      struck those laws from the books.

      Justice Harry Blackmun, for the majority, reemphasized that all
      persons were entitled to,equal protection of the laws under the
      Fourteenth Amendment. He noted: Classifications based on alienage,
      like those based on nationality or race, are inherently suspect and
      subject to close judicial scrutiny. Aliens as a class are a prime
      example of a "discrete and insular" minority for whom much
      heightened judicial solitude is appropriate.


      Graham v. Richardson, 403 U.S. 365, 371 (1971)

      Two years later, continuing the emphasis of Graham, the Court
      refused to approve a New York state law which required all civil
      service positions to be filled by citizens (Sugarman v. Dougall
      (1973)) and threw out a Connecticut statute which barred aliens from
      practicing law (In Re Griffiths (1973)).

      In the 1970s, however, the liberality of the 1960s began to be
      overtaken by more conservative sentiments as demonstrated by more
      conservative sentiments as demonstrated by Richard Nixon's election
      to the Presidency in 1968 and his four subsequent appointments to
      the Court (Warren Burger, C. J., Harry Blackmun, Lewis Powell, and
      William Rehnquist).

      Thus, looking at the Supreme Court's decisions of the 1970s is like
      watching a tennis game. Sometimes the justices were at one end of
      the spectrum, displaying the liberal spirit of the 1960s (as in
      cases like Graham v. Richardsonand Sugarman v. Dugall above), while
      at other times the Supreme Court seemed almost like a throwback to
      the conservative Taft Court of the 1920s.

      Both liberal and conservative justices, of course, still allowed
      Congress and the executive absolute authority to determine who might
      legally enter the United States and what benefits they were entitled
      to.

      Thus a more conservative majority upheld the State Department's
      right to ban foreign visitors for ideological reasons, sustained
      Congress' decision to deny federal civil service jobs and coverage
      under federal Medicare programs to aliens, and refused to disallow a
      congressional policy which permitted illegitimate children of
      female, but not male, citizens entry into this country. Insupporting
      this type of sexist discrimination, in Fiallo v. Bell (1977),
      Justice Powell relied on previous Supreme Court decisions
      which "repeatedly emphasized that 'over no conceivable subject is
      the legislative power of Congress more complete than it is over' the
      admission of aliens."

      On the state level, moreover, the Court decisions also began to
      reflect the temper of Nixon's appointees. States were told how
      separate laws regarding citizens and aliens might be
      sanctioned: "The State need only justify its classifications by a
      showing of some rational relationship between the interest sought to
      be protected and the limiting classification."

      Thus a New York law requiring state troopers to be citizens (Foley
      v. Connellie (1978)) was approved as well as a California statute
      requiring e same of "peace officers" (Cabal v. Chavez-Salido
      (1982)).

      Chief Justice Warren Burger explained the rationale for the
      majority's position in these words: The essence of our holdings to
      date is that although we extend to aliens the right to education and
      public welfare, along with the ability to earn a livelihood and
      engage in licensed professions, the right to govern is reserved to
      citizens.


      Foley v. Connelie, 435 U.S. 291, 297 (1978)

      The nature of the most recent decisions in regard to aliens suggests
      that the Court will still sanction just about anything Congress and
      the executive choose to do with them. A double standard has been
      set, however, about how the states may act.

      One the one hand, they are supposed to grant equal protection to non-
      citizens; but, if they can show a legitimate public interest for
      classifyingaliens on a different basis, the Court will entertain
      these categories on a case-by-case basis. In Plyler v. Doe (1982),
      concerning a state's paying to educate children of undocumented
      aliens, Justice William J. Brennan reiterated for a narrow 5-4
      majority the necessity of granting minors equal protection of the
      laws.

      But a powerful minority composed of Justices Burger, William
      Rehnquist, Byron White, and Sandra Day O'Conner dissented. Plyler
      presented several complex issues which limitations of space prevent
      us from dealing with here, but it is important to note that any
      future change in the Court's personnel might be sufficient to erode
      some established positionsconcerning the rights of aliens, tilting
      the Court in a different direction.

      The Supreme Court has frequently been criticized for subjecting the
      rights of citizens to the prevailing political temper of the
      government and the predilections of the sitting justices.
      Thiscriticism is even more true of Supreme Court decisions regarding
      the rights of aliens at the hands ofthe states.

      The equal protection clauses of the Fifth and Fourteenth Amendments
      do not apply to aliens except in those specific areas where Congress
      and/or the Supreme Court have specified that they do. And, as Peter
      Schuck wrote in a 1984 Columbia Law Review article, in the field of
      immigration law, "government authority is at the zenith, and
      individual entitlement is at the nadir."


      Notes:
      The two best articles on immigrants and the Supreme Court are Peter
      H. Schuck, "The Transformation of immigration Law," 84 Columbia Law
      Review 1 (1984), and "Developments in the Law-Immigration Policy and
      the Rights of Aliens," 96 Harvard Law Review 1286 (1983). Since
      1975,the San Diego Law Journal has devoted one issue a year to
      immigration policy.

      A brief history of American immigration is Leonard Dinnerstein and
      David M. Reimers', Ethnic Americans (2ndedition;New York: Harper and
      Row, 1982). The most recent analysis of third world immigration to
      the United States since 1945 is David M. Reimers, Still The Golden
      Door (New York: Columbia University Press, 1985).

      Copyright 1985 by the American Political Science Association and
      American Historical Association.

      This essay may be photocopied if attributed as follows: "Reprinted
      from this Constitution: A Bicentennial Chronicle, Fall 1985,
      published by Project '87 of the American Political Science
      Association and American Historical Association.

      For further information on APSA copyrights contact APSA at
      apsa@... , by phone at (202) 483-2512 or Fax (202) 483-2657.
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