Become a Patreon!


Excerpted From: Kevin R. Johnson, Systemic Racism in the U.S. Immigration Laws, 97 Indiana Law Journal 1455 (Spring, 2022) (142 Footnotes) (Full Document)

KevinJohnsonA series of brutal police killings of African Americans, including George Floyd and Breonna Taylor, in 2020 sparked a sustained popular challenge to systemic racism in the U.S. criminal justice system. Black Lives Matter protests in cities across the United States put systemic racism at the forefront of the national consciousness. This Essay contends that, similar to the systemic racism embedded in criminal law enforcement, racism historically has plagued the U.S. immigration system and continues to do so to this day. With systemic racism under attack in the criminal justice system, this is no less than an ideal moment in history for a dedicated effort to bring racial justice to immigration law.

Throughout its history, the United States has experienced sporadic xenophobic outbursts, often tinged with heavy doses of racism. On several notable and historic occasions, California's outbursts against immigrants spread nationally. In the late 1800s, for example, California, a relatively young state at the time comprised of land primarily seized through what many historians believe was a war of racial aggression with Mexico, was nothing less than a hotbed of hostility toward Chinese immigrants. Long forgotten by the general public, anti-Chinese agitation in the Golden State pushed the U.S. Congress to enact the first--and fervently anti-Chinese-- comprehensive federal immigration laws. The desire to exclude Chinese immigrants from the United States, which could not be accomplished by the individual states, fueled the federalization of immigration law and wholesale displacement of state law. As discussed in this Essay, the Supreme Court's blanket rejection of constitutional challenges to those discriminatory laws--in fact immunizing them from constitutional review--laid the groundwork for the systemic racial injustice that thrives in today's immigration laws and their enforcement.

More than a century later, California again proved to be a national immigration trendsetter. Even though California today has declared itself to be a sanctuary state, ferocious anti-immigrant sentiment in the state reappeared long after the anti-Chinese activism of the late 1800s. After a campaign fueled by hostility toward people of Mexican ancestry, Californians in 1994 in a racially polarized vote overwhelmingly passed an undisputedly anti-immigrant initiative known as Proposition 187, an immigration milestone that, among other things, would have stripped undocumented immigrants of virtually any and all public benefits and kicked them out of the public schools. Lopsided political support for the initiative among California voters convinced Congress to pass tough federal immigration and welfare reform legislation. Other states later responded to popular concerns with immigration from Mexico through laws building on Proposition 187.

California's immigration experience thus has repeatedly influenced immigration developments at the national level. Surprisingly enough, the impacts of the Chinese exclusion laws, which resulted from powerful political support emanating from nineteenth century California, continue to reverberate in modern U.S. immigration law and enable systemic racism to flourish in the contemporary immigration system. This Essay specifically analyzes how anti-Chinese activism marred by murderous violence in a small California mountain town triggered a racial chain reaction culminating in a series of discriminatory immigration laws over more than a century.

Responding to sustained political demands from the West, Congress in 1882 passed the Chinese Exclusion Act, the first comprehensive piece of federal immigration legislation. Federalizing immigration regulation, the Act displaced state laws seeking to regulate immigration. Moreover, universally-- and rightfully-- condemned by contemporary scholars as a shameful piece of racist legislation, the Chinese Exclusion Act commenced a prolonged congressional effort to exclude Chinese and other Asian immigrants from the United States. Generations of discriminatory laws followed.

In upholding the Chinese Exclusion Act, the Supreme Court in 1889 took the extraordinary step of declaring that Congress possessed “plenary power” over immigration that courts could not disturb; by doing so, the Court in effect immunized the immigration laws from ordinary constitutional review. Despite being more consistent legally with its pro-segregation contemporary, Plessy v. Ferguson (1896) than the modern civil rights icon Brown v. Board of Education (1954), the Court has repeatedly failed to overrule The Chinese Exclusion Case. The Court instead has applied the decision, or cases following it, on many occasions through to the present. Absent the threat of judicial intervention, Congress later extended the ban on Chinese immigration to immigrants from all of Asia and severely restricted the immigration of other disfavored races and groups, including, but not limited to, the poor, disabled persons, political minorities, women, and gays and lesbians. Despite its inconsistency with modern constitutional law, The Chinese Exclusion Case and its progeny continue to serve as an impervious shield to constitutional challenges to contemporary immigration laws and policies.

By consistently precluding meaningful constitutional review of the immigration laws, the Supreme Court enabled the concerted effort of the Trump administration to aggressively enforce the immigration laws with a zeal unlike any other modern presidency. Its “sweeping, high-profile immigration enforcement initiatives--along with its inflammatory anti-immigrant rhetoric-- mark[ed] the ascendance of immigration restrictionism to the highest levels of the executive branch that is entirely without modern precedent.” The controversial--some might describe it as heartless--policy of separating migrant Central American children from their parents exemplifies the frightening lengths that President Trump went in the name of enforcing the immigration laws. Other examples abound, with some harsh measures continuing to remain in place after Trump left office.

As the nation comes to grips with how the Trump administration punished immigrants in the dogged pursuit of a restrictionist immigration agenda as well as generally considers the eradication of systemic racial injustice in modern America, it is an especially appropriate moment to reconsider the modern constitutional immunity of the immigration laws, which today finds itself dramatically out of synch with contemporary constitutional law.

History reveals that the wholesale deference to Congress was the product of deplorable and widespread racism, along with deadly violence, against Chinese immigrants in the 1800s. A now-anomalous Supreme Court decision and its progeny have allowed generations of discriminatory immigration laws and policies to stand to the present day. Critical inquiry into the continuing efficacy of the plenary power doctrine is especially necessary and appropriate because the modern immigration laws built on the plenary power doctrine have systematic, and adverse, racial impacts. Those impacts were exacerbated as enforced by the Trump administration and its singular dedication to immigration restrictions and aggressive enforcement directed primarily at noncitizens of color.

Part I of this Essay reviews the concerted political pressure at the state and local levels, especially in California, in the 1800s to banish Chinese immigrants through a web of laws, economic boycotts, and brutal violence that amounted to what today would be called an ethnic cleansing. Part II recounts a long-forgotten episode of murderous violence by white vigilantes against Chinese workers--known as the Trout Creek Outrage--in a small mountain town in California. Allowing that racist violence to go unpunished, an all-white jury acquitted a group of white defendants of murder and arson charges. Anti-Chinese agitation in that town had powerful state and national reverberations. Part III traces the legacy of state and local anti-Chinese violence and political agitation, including federal immigration legislation that effectively barred future Chinese immigration and ultimately immigration from all of Asia, to the United States. In upholding those laws, the Supreme Court created a stout legal foundation allowing unvarnished discrimination against Asian and other disfavored immigrants to run rampant for more than a century. That foundation provided President Trump with a largely unencumbered path to pursue scores of punitive, discriminatory, and, to many Americans, terrifying and unacceptable immigration policies.

Forged in the era of Jim Crow when radically different racial sensibilities dominated the political and legal landscape than do today, the plenary power doctrine--even though occasionally narrowed, ignored, or otherwise avoided by the courts--continues in many cases to severely constrict the rights of immigrants and allows to stand unforgiving immigration policies, from the ban on Muslim immigration to the summary deportation of asylum seekers. Forged in a time of unapologetic racism, that antiquated legal approach must be eliminated root and branch if one hopes to eradicate the systemic racism embedded in the modern immigration laws and policies, which mirror that resulting from the contemporary enforcement of the criminal laws. While the nation seeks to reckon with systemic racial injustice in criminal law enforcement and U.S. society generally, addressing the same exact evil in the U.S. immigration system is long overdue. To do so, the constitutional review of immigration law and policy must be completely untethered from its racist roots.

[. . .]

Anti-Chinese agitation at the state and local levels in the 1800s led to violence and widespread discrimination. In the small town of Truckee, California, the Trout Creek Outrage exemplified the murderous violence, built on a sturdy foundation of discrimination, against Chinese immigrants. Years of local and state agitation and violence eventually led to the first federal immigration laws.

The anti-Chinese history of the mountain town of Truckee is interesting. However, it is far more than that. As this nation deals with a racial reckoning, we must look at the influence of the nation's immigration history on contemporary legal doctrine. The violent anti-Chinese agitation in the West paved the way for the federal Chinese Exclusion Act of 1882 and The Chinese Exclusion Case. That monumental decision, upholding a racist law in a time when separate but equal was the law of the land, remains the foundation for today's lack of constitutional review of immigration laws and policies. The absence of meaningful review is precisely why the nation repeatedly sees policies like the Muslim ban, separation of migrant children from their parents, and worse when it comes to immigrants. Put differently, contemporary U.S. immigration law is built on racist foundations, with the seminal plenary power doctrine decision's very name--The Chinese Exclusion Case--leaving no doubt about that racism.

The Chinese Exclusion Case has been criticized to no end but remains the law of the land. In thinking anew about its modern impacts, we should interrogate its racist roots and how the case fits comfortably into Jim Crow and unbridled white supremacy. That, in turn, requires us to consider the history of anti-Chinese agitation, ethnic cleansing through the Truckee method, and legal abominations such as the Trout Creek Outrage. This Essay is one step in excavating that history in hopes of provoking creative thinking about the racist roots of immigration exceptionalism and how to end it. Such analysis may at some point contribute to the overruling of The Chinese Exclusion Case and dismantling of the plenary power doctrine. Only then can a meaningful effort be made to end systemic racial injustice in the U.S. immigration laws.

Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law.

Become a Patreon!