Communist, Nihilist, Socialist, Fenian & Hoodlum welcome...  But Chinamen not allowed. Photo: Wiki Commons
Communist, Nihilist, Socialist, Fenian & Hoodlum welcome... But Chinamen not allowed. Photo: Wiki Commons

The Chinese Exclusion Act has a dubious distinction: it was the first federal law in the United States to prevent members of a specific ethnic group from entering the country. The law banned the immigration of Chinese laborers and prevented Chinese from becoming naturalized citizens. The law came into being in 1882 and was repealed in 1943, a time when China was an ally in World War II.

These details have a chilling echo in President Donald Trump’s recent executive orders banning people from several predominantly Muslim countries from entering the US, according to Mae Ngai, a Lung Family Professor of Asian American Studies at Columbia University in New York. Ngai is a respected authority on the exclusion act and says much of its legal basis still stands and that the US has yet to distance itself legally from the act’s “odious” precedent.

Can you describe the legal precedent set by the Chinese Exclusion Act and how it relates to Trump’s Muslim ban?

The Chinese Exclusion Act was upheld by the Supreme Court in 1889 and it did so on the grounds of national security. They didn’t use those words but they did talk about Chinese immigrants in particular about being “agents” of a foreign country and describing them as being the “advance guard” of an army.

How did the exclusion act differ from earlier views on immigrants to the US?

Before this time, immigrants were seen as articles of commerce. Prior to the American Civil War, immigration was not a matter of federal regulation. That was because of slavery, because the North and the South couldn’t agree on how to regulate the flow of people. For the Confederate States, it was a matter of state’s rights and not wanting the federal government to have any say or control over its human chattels. But it’s only after the Civil War that immigration falls under federal regulation. In 1875, the US placed immigration under the so-called Commerce Clause, so that the law governing immigration would have a justification under the constitution. The logic is that immigrants are mostly workers, seen as articles of commerce in that broad sense.

What were the circumstances behind the 1889 Supreme Court decision?

After Chinese exclusion was legislated in 1882, a case was brought before the Supreme Court. This was because when exclusion was passed in 1882, there was a law that said that anybody who was already in the US was OK and if you left the country you would be given a certificate of return. A Chinese man named Chae Chan Ping showed up with the certificate of return. What he didn’t know is that while he was abroad, the Chinese Exclusion Act had basically declared all those certificates null and void. This is similar to the current situation of people having a visa to get into the US from one of the seven [originally] banned Muslim countries, and then showing up at a US airport and being told, “Sorry, your visa is no good.” You already have the piece of paper but between the time you got it and got on the plane and went in the air, they declared your visa null and void.

So there’s a real parallel. Chae Chan Ping went to the Supreme Court more than a century ago and the court said aliens have no rights in matters of admission, and they justified that on grounds of national security. They said it doesn’t matter if a foreign country attacks us with weapons or if they send millions of people and crowd us out. They also said it doesn’t matter if there are no hostilities between our countries at the moment. If there were, they said this would just make the matter more pressing. The language the court used in this case is very plain.

How does the US Congress fit into this?

By making immigration a matter of national security, what the Supreme Court did is that it took immigration and put it in the same basket of issues relating to foreign relations that Congress has complete control over. It’s in the same container as the right to declare war, the right to ratify treaties and the executive’s right to conduct foreign relations.
So immigration issues are not under the purview of the constitution. They are extra-constitutional. That’s why the US Immigration and Nationality Act can have this clause, 212 (f) that says the president can invoke the need of national security and suspend immigration by any alien or class of aliens for whatever time wanted. That’s the kind of jurisprudence behind Trump’s actions. Aliens have no right to enter the US.

Does Trump’s latest order make it easier for the legal basis of the Chinese Exclusion Act to stand?
Yes, but Trump’s original and revamped orders are both rooted in Congress’s plenary power or absolute power over immigration matters and no one foresees, at this point, that this plenary power over immigration is going to be reversed. It’s the foundation of our entire immigration law. It also applies to deportation. Aliens basically don’t have the right to stay in the US.

To what degree is Trump’s characterization of Muslims as potential terrorists and people “who don’t love America” reminiscent of the assumptions behind the exclusion act?

The logic of Chinese exclusion was a racial one. You could say the religious part of Trump’s order pertaining to Muslims is a new kind of racism but the original racist argument behind the exclusion act was that Chinese cannot assimilate, that there is something about Chinese that makes them innately alien and unable to assimilate. That’s the same logic as Trump’s view that Muslims follow a hateful religion and that Muslim’s don’t love America.

How was the legal precedent set by the Chinese Exclusion Act extended to Japanese and South Asians in subsequent immigration laws?

Chinese were the only group to be excluded from the US by name. The Japanese were later excluded from the US through diplomatic agreement under the so-called gentleman’s agreement in 1907 and then statutorily in 1924, although the Japanese weren’t mentioned by name. The statute said: “No alien ineligible for US citizenship can be admitted.” It worked backwards from the idea that if you’re unable to be a citizen, as in the case of the Japanese, then you can’t come in.
South Asians were excluded from 1917 when Congress created what it called a “barred Asiatic zone” that stretched from Afghanistan to the Pacific. The euphemisms in these laws were used in part for diplomatic reasons because Japan was very different from China; it was a strong power. India was part of the British Empire at the time. The US was a little hesitant to offend both Japan and Britain.

How will Trump’s immigration policies affect the general screening of refugee and immigrant applicants to the US?

The screening of refugees is an interesting question because refugees to the US are already screened more strictly than any group. The screening can last two years or more for a potential refugee. The number of refugees admitted to the US versus the total number of refugees in the world is also minuscule. These refugees, moreover, are vetted several times over; first by the United Nations and then by the US, three to four times. It’s not clear me to what President Trump means by imposing “extreme vetting.” Most of the refugees who are admitted to the US are women and children and old people from the Middle East. A terrorist sneaking into the US as a refugee is probably the hardest way for such people to get in.

What about immigrant applicants?

Immigrant applicants are going to face much tougher screenings. It may be harder to get a visa. It’s not clear how the government is going to do this. One thing in Trump’s order was the requirement for a standardized method that would include a personal interview for immigrants to the US. The interview would determine, among other things, the applicant’s support for America. That gives the US consular officer who’s conducting the interview a great deal of discretion. You can imagine that no Muslim is going to get through the interview if they say they have to love America. I don’t even know that Europeans would say that.

What legal steps may be necessary to change the national security premise of such orders?

A Supreme Court decision would have to change the foundation of US immigration law. I don’t think that’s going to happen because there are always foreign policy considerations that affect US immigration law.

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