Immigration dispute is a political question not for the courts

As President Donald Trump continues attempting to implement his promised immigration reforms, and specifically the rescission of former President Barak Obama's Deferred Action for Childhood Arrivals, the opposition keeps turning to the courts rather than Congress to put a stop to what one federal district court has called, "damaging fallout that results from excessive political partisanship." Casa de Maryland v. U.S. Dept. of Homeland Security, 2018 U.S. Dist. LEXIS 35373 at. p.5 (D. Md. 2018).

That same court noted that, "[t]he Constitution reserves the power to enact immigration policy to the legislative branch," and that: "'supervision of the admission of aliens into the United States may be entrusted by [C]ongress' to the executive branch." Id. at p.6.

Another federal district court acknowledged that, "[n]ew administrations may, however, alter or abandon their predecessors' policies, even if these policy shifts may impose staggering personal, social and economic costs." Vidal v. Nielsen, 279 F. Supp 3d 401, 408-09 (E.D.N.Y. 2018). And a third federal district court agrees that, "a new administration is entitled to replace old policies with new policies so long as they comply with the law." Regents of the University of Cal. v. United States Dept. of Homeland Sec., 279 F. Supp. 3d 1011, 1018 (N.D. Cal. 2018).

These constitutional realities and the present circumstances bring into focus a case that was decided more than a century ago, started in California, has factual similarities to current events, and is still cited in defining the power of Congress and the president over immigration: The Chinese Exclusion Case, 130 U.S. 581 (1889). See Laurence H. Tribe, "American Constitutional Law" (3d ed.) pp.967-68, 968 n.15; 973 n.43; Polly J. Price, "A 'Chinese Wall' at the Nation's Borders: Justice Stephen Field and The Chinese Exclusion Case," 43 Journal of Supreme Court History 7 (2018).

In his opinion for a unanimous Supreme Court, Justice Stephen Field ruled that Congress' immigration choices are "conclusive on the judiciary." 130 U.S. at 606. "As a result, the Court has consistently held that the substantive requirements an alien must meet to enter this country, to remain here, or to become a citizen, are virtually political questions, matters within the discretion of Congress and outside the scope of all but the most limited judicial review." Tribe at p.973.

The same gold rush that brought many Chinese laborers to California also brought Justice Field from New York. Field was a flamboyant lawyer and got in numerous scrapes engaging in what some refer to as "frontier justice," but he eventually became chief justice of the California Supreme Court. From there he was appointed by President Abraham Lincoln in 1863 to a newly created 10th seat on the U.S. Supreme Court, and as part of his duties he "rode circuit" for the federal circuit court covering California. On one of his trips west he was accosted by a predecessor chief justice of the California Supreme Court, David Terry, with whom he had been involved in a lengthy feud, as a result of which Terry was shot dead by Field's U.S. marshal bodyguard. The marshal was later exonerated of any criminal wrongdoing by the U.S. Supreme Court. In re Neagle, 135 U.S. 1 (1890) (shades of the U.S. Constitution's "supremacy clause" -- also in the news on the immigration front these days). Bernard Schwartz, "A History of the Supreme Court" 151 (1993).

Leading up to The Chinese Exclusion Case the United States had been anxious to open up trade with China, and Chinese immigration had been encouraged as a source of cheap labor. But eventually native-born laborers, who were able to vote, would not compete with the cheaper Chinese labor, and the western states pressured Congress to act. In 1882, the Chinese Exclusion Act was passed. 130 U.S. at 590-99; Price at pp. 10-12.

In The Chinese Exclusion Case, a laborer, Chae Chan Ping, had come to San Francisco in 1875 to work. Twelve years later he returned to China to visit his family, relying on a statute which allowed Chinese laborers to be readmitted to the U.S. if they had the proper U.S. government certificate to prove that they had been in the U.S. before the ban on Chinese immigration took effect. Ping obtained the certificate before he left, but when he returned he was denied admission because of a new law that had gone into effect while he was gone banning all Chinese laborers. The U.S. Supreme Court unanimously upheld the ban, ruling that the certificate Ping had obtained had no legal effect. 130 U.S. at 599-03; Price at pp. 9-10. In doing so the court equated protection of domestic labor interests with wartime necessity, and articulated Congress' plenary power over immigration, that is "an incident of every independent nation (130 U.S. at 603), and is "conclusive on the judiciary." 130 U.S. at 606; see Price at pp. 12-13; Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) ("The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. This authority rests, in part, on the National Government's constitutional power to 'establish an uniform Rule of Naturalization,' and its inherent power as sovereign to control and conduct relations with foreign nations") (internal citations omitted).

Today such a "political question" might be generally defined as one that the courts have determined should be resolved by another branch of government. In Baker v. Carr, 369 U.S. 186, 217 (1962), the court listed criteria whose presence, when "inextricable" from the case, signals a nonjusticiable political question: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

The current disputes are with the president's immigration orders, and lower court decisions focus largely on procedural matters. As one court put it, "plac[ing] courts in the formalistic, even perverse, position of setting aside action that was clearly within the responsible agency's authority, simply because the agency gave the wrong reasons for, or failed to adequately explain, its decision." Vidal at 408; but see Kleindienst v. Mantel, 408 U.S. 753, 765-69 (1972) (courts will not look behind the attorney general's bona fide reason for not waiving the statutory exclusion of an immigrant); Hawaii v. Trump, 878 F.3d 662, 697 n.2 (9th Cir. 2017) ("we again need not, and do not, decide whether the President may be able to suspend entry pursuant to his constitutional powers under any circumstances") (emphasis in original).

Even in these kinds of disputes, "[t]he reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." Fiallo v. Bell, 430 U.S. 787, 796 (1977). On policy questions, the courts "have no judicial authority to substitute [their] political judgment for that of Congress." Id. at 798.

So, in the long run, only Congress and the president can resolve the underlying issue that "We the People" are most interested in: the extent to which the United States will permit the entry, stay and naturalization of particular immigrants. Since the U.S. Supreme Court has recently declined to review two cases that address DACA, leaving lower court rulings in place and perhaps signaling that it is in no hurry to take up the issue, our elected representatives might want to consider the possibility that this mid-term election year is a good time to get with it.