Supreme Court, U.S.

Judgments and interpretations of the U.S. Supreme Court have been crucially important in the development of immigration law, including issues such as the constitutional powers of Congress, the legal rights of resident noncitizens, and the rules for deportation proceedings.

Immigration law is primarily a function of statutes and executive regulations. Armed with its established power of judicial review, the Supreme Court makes binding rulings on both the meanings and constitutionality of such statutes and regulations. Although the Constitution does not directly mention either immigration or the rights of aliens, it delegates to Congress the powers to regulate “commerce with foreign nations” and to establish a “uniform rule of naturalization.” Another relevant provision is the supremacy clause, which recognizes that federal statutes and treaties are equally part of the “supreme law of the land,” so long as they are not in conflict with the Constitution. Combining these provisions with legal traditions, the Supreme Court held in [c]Chae Chan Ping v. United StatesChae Chan Ping v. United States (1889) that the authority to exclude foreigners was “an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution.”Immigration law;and Supreme Court, U.S.[Supreme Court, U.S.]Supreme Court,
[a]Constitution, U.S.;and Supreme Court, U.S.[Supreme Court]Immigration law;and Supreme Court, U.S.[Supreme Court, U.S.]Supreme Court, U.S.[a]Constitution, U.S.;and Supreme Court, U.S.[Supreme Court][cat]GOVERNMENT AGENCIES AND COMMISSIONS;Supreme Court, U.S.[cat]LAW ENFORCEMENT;Supreme Court, U.S.[cat]DEPORTATION;Supreme Court, U.S.

Based on this “plenary power doctrine,” the Supreme Court has recognized that foreigners seeking to enter the United States have almost no constitutional rights that Congress must respect. Noncitizens legally residing in the country, however, are entitled to at least some of the legal rights that are enjoyed by citizens. In deportation proceedings, the federal government is bound by the Due process protections;and deportation[deportation]due process clause of the [a]Fifth Amendment;and deportation[deportation]Fifth Amendment. However, because deportation is classified as a civil sanction rather than a criminal punishment, the Court has held that most constitutional protections–including the [a]Sixth AmendmentSixth Amendment’s right to counsel and the Fifth Amendment’s privilege against self-incrimination–are generally not applicable to the proceedings.

Congressional Powers and Federalism

Immigration laws and regulations, by their nature, raise delicate questions concerning federalism–that is, the sharing of powers between the national government and the states. Before the 1880’s, the national government did little to regulate immigration. The coastal states with large ports, therefore, established institutions and procedures for the admission of foreigners. Although state governments tended to be liberal in their admission policies, they attempted to restrict the number of persons who were indigent, diseased, or mentally disabled.

In order to help finance these needy immigrants, New York and a few other “Head taxes”[head taxes];and states[states]states required ships’ captains to pay a head tax and maintain control over each passenger. The Supreme Court in [c]New York v. MilnNew York v. Miln (1837), its first major immigration decision, sustained the law as a legitimate application of the state’s police power. Justice Barbour, Philip P.Philip P. Barbour avoided the issue of the congressional powers, instead focusing on the need for the state legislature to protect citizens from the problems and costs associated with paupers and other undesirable persons.

Slightly more than a decade later, the Supreme Court essentially reversed the Miln decision in the [c]Passenger CasesPassenger Cases (1849), prohibiting the states from placing taxes on immigrants. This was followed by [c]Cooley v. Board of Wardens of the Port of PhiladelphiaCooley v. Board of Wardens of the Port of Philadelphia (1852), which explicitly recognized Congress’s exclusive power to regulate interstate commerce and prohibited the states from interfering with a system of national uniformity. Expanding on these two rulings in [c]Henderson v. Mayor of the City of New YorkHenderson v. Mayor of the City of New York (1875), the Supreme Court overturned state laws requiring ships to post bonds on entering immigrants in order to help pay the costs of those needing assistance. Because the decision made it clear that almost all state laws restricting immigration would be ruled unconstitutional, the states began to abolish their institutions for regulating immigration.

The dismantling of state regulatory agencies took place at the same time when the “new immigration” from Europe was beginning. In response, in 1882 Congress enacted its first major immigration law, which imposed a “Head taxes”[head taxes];Head Money Caseshead tax of fifty cents on each immigrant and prohibited the admittance of those who were paupers, insane, or suffering from a contagious disease. When shipping companies challenged the constitutionality of the tax, the Supreme Court upheld its constitutionality in the Head Money Cases (1884). Reaffirming the federal government’s plenary power over foreign commerce, the Court held that the head tax was actually a “mere incident of the regulation of commerce.” Acknowledging that the law was in conflict with a foreign treaty, moreover, the Court held that Congress had the unfettered power to override treaties by way of legislation.

Chinese Exclusion Laws

Between 1882 and 1902, Congress enacted a [a]Chinese Exclusion Act of 1882;and Supreme Court, U.S.[Supreme Court, U.S.]series of Chinese exclusion laws. The first such statute, passed in 1882, prohibited Chinese laborers and miners from entering the country. An amendment of 1884 required Chinese laborers leaving the country to have a reentry certificate in order to return. Later that year, the Supreme Court ruled on the enforcement of the legislation in [c]Cheung Sum Shee v. NagleChew Heong v. United States (1884). Chew Heong, a Chinese laborer who had left the country in 1881, was denied reentry because of his lack of a certificate. By a 7-2 majority, the Court overturned the refusal as a violation of Heong’s legal rights. Justice Harlan, John MarshallJohn Marshall Harlan’s opinion for the Court addressed two major arguments. First, Heong was qualified to obtain a certificate, and he could not be required to do what was impossible for him to do. Second, the denial of his right to return contradicted a treaty with China. Since Congress had not clearly and unambiguously expressed its intent to repeal the treaty, Harlan explained, the Court
was required to reconcile the provisions of the treaty with those of the legislation.

In [a]Scott Act of 18881888, Congress enacted the more stringent Scott Act, which included a provision prohibiting Chinese residents from returning to the United States if they traveled abroad. Chae Chan Ping had left for a visit to China in 1887, and he attempted reentry a few days after the Scott Act went into effect. Chae challenged the constitutionality of the law, based on its incompatibility with U.S. treaties with China. In the resulting [c]Chae Chan Ping v. United StatesChae Chan Ping v. United States (1889), the Supreme Court unanimously rejected Chae’s challenge and upheld the law, based on the inherent power of a sovereign nation to establish its own immigration policies. The opinion for the Court also reaffirmed the authority of Congress to repeal or to modify a treaty as it deemed appropriate.

The [a]Geary Act of 1892;provisions ofGeary Act of 1892 continued the earlier restrictions and also required that all Chinese laborers had to have residency certificates or face deportation. When Fong Yue Ting and two other Chinese residents were found not to have certificates, they were ordered to be deported. In the resulting case of [c]Fong Yue Ting v. United StatesFong Yue Ting v. United States (1893), the Supreme Court upheld the deportations and recognized that the government’s power to deport foreigners “is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.” The next year, Congress authorized immigration officials to make final decisions concerning which aliens to exclude from admission, without the privilege of Habeas corpushabeas corpus relief in the federal courts. The Supreme Court upheld this limit on due process rights in [c]Lem Moon Sing V. United StatesLem Moon Sing v. United States (1895), which meant that immigration officials no longer had to worry about being overruled by judges.

State Governments<index-term><primary>States and immigration law</primary></index-term> and Alienage

The rights guaranteed under the [a]Fourteenth Amendment;due process clauseFourteenth Amendment’s Due process protectionsdue process clause and equal protection clause apply to “any person” within a state’s jurisdiction, which includes aliens legally residing in the country. The Supreme Court’s first important case involving the states’ regulations of such persons was [c]Yick Wo v. HopkinsYick Wo v. Hopkins (1886), which struck down a San Francisco ordinance requiring laundries in wooden buildings to obtain a license from city authorities. Although the ordinance appeared to be neutral on its face, the Court determined that its application was so grossly discriminatory against Chinese laundries that it violated the Fourteenth Amendment. The opinion in the case was somewhat unclear about the specific ways in which aliens enjoy equal rights.

The Supreme Court clarified this issue in [c]Truax v. RaichTruax v. Raich (1915), striking down an Arizona;citizenship lawsArizona law requiring citizenship for 80 percent of the employees in most businesses. In writing the opinion for the Court, Justice Hughes, Charles EvansCharles Evans Hughes focused on the law’s effect of depriving alien residents of their right to earn a livelihood. The right to work in the common occupations, he declared, was “the very essence of the personal freedom and opportunity that it was the purpose of the Fourteenth Amendment to secure.” In addition, the power to admit or to exclude immigrants was vested exclusively in the federal government. State legislation that deprived such persons of their right to earn a livelihood was “tantamount to denying their entrance and abode.” The Arizona law, therefore, violated principles of federalism under the supremacy clause.

Under Chief Justice Earl Warren, the Supreme Court began one of its most activist periods. Members of the court during the late 1960’s included (clockwise from upper left) Abe Fortas, Potter Stewart, Byron R. White, Thurgood Marshall, William J. Brennan, Jr., William O. Douglas, Warren, Hugo L. Black, and John Marshall Harlan II.

(Harris and Ewing/Collection of the Supreme Court of the United States)

The Supreme Court, nevertheless, has sometimes authorized significant limitations on the rights of immigrants as a class. In the case of [c]Patsone v. PennsylvaniaPatsone v. Pennsylvania (1914), for example, the Court upheld a state law forbidding noncitizens from hunting wild game. Justice Holmes, Oliver WendellOliver Wendell Holmes wrote that it was reasonable for a state to reserve its limited natural resources for the exclusive use of its citizens. Holmes even allowed the state to prohibit noncitizens from owning shotguns and rifles, because such weapons were presumably not necessary for purposes other than hunting. In a similar ruling, [c]Terrace v. ThompsonTerrace v. Thompson (1923), the Court upheld a Washington State law that severely restricted the right of aliens to own or lease land for agriculture. Such a right, in the Court’s view, was not necessary for earning a livelihood, and the states had a strong interest in controlling which persons use large portions of farming land. Although acknowledging that a treaty with Japan authorized immigrants to lease land as necessary to “carry on trade,” the
Court concluded that trading activities were different from agricultural production.

Standards of Review for Alienage

After World War II, the Supreme Court began developing different standards of review for examining governmental classifications that are challenged as violating persons’ rights to equal protection. The Court gradually arrived at three main standards: ordinary scrutiny, strict scrutiny, and intermediate scrutiny. In [c]Korematsu v. United StatesKorematsu v. United States (1944), which upheld the constitutionality of the relocation of persons of Japanese ancestry, Justice Black, Hugo L.Hugo L. Black wrote in the majority opinion that racial classifications were “inherently suspect” and therefore subject to the “most rigid scrutiny.” The classification, therefore, could be justified only by a compelling government interest. In the Korematsu case, the need to protect against espionage outweighed the rights of the individual. When the classification is based on age, the Court has used ordinary scrutiny, asking only if the policy is reasonable. In gender classifications, the Court has usually used intermediate scrutiny.

During the early 1970’s, the Supreme Court explicitly applied strict scrutiny to governmental regulations that discriminated against aliens in public benefits and employment opportunities. The landmark decision was [c]Graham v. RichardsonGraham v. Richardson (1971), which overturned Arizona;citizenship lawsArizona’s law denying welfare benefits to aliens. Recognizing that such aliens are a discrete and politically powerless minority, the Court refused to accept the state’s argument that giving funds to them would make it impossible to provide citizens with adequate benefits. The Court also applied strict scrutiny in In re Griffiths (1973), which held that the [a]Fourteenth Amendment;equal protection clauseFourteenth Amendment prohibited the states from denying noncitizens the right to practice law.

A few years later, however, in [c]Foley v. ConnelieFoley v. Connelie (1978), the Supreme Court applied a lesser standard of review in upholding a New York law that required U.S. citizenship in order to serve on the state’s police force. A 6-3 majority of the justices accepted the theory that states need only show a rational relationship between a valid governmental interest and a classification limiting the rights of aliens. In evaluating such criteria, the majority opinion referred to the citizenship role of police offices and to the states’ long-standing precedents of excluding “aliens from participation in its democratic political institutions,” “the basic functions of government.” In the case of [c]Ambach v. NorwickAmbach v. Norwick (1979), the majority of the justices accepted Foley’s “political function” rationale in upholding a state law that barred aliens from teaching in the public schools.

In the case of [c]Bernal v. FainterBernal v. Fainter (1984), however, the Court, by an 8-1 majority, explicitly returned to the standard of strict scrutiny, which resulted in the invalidation of a Texas law that barred aliens from working as Notary publicsnotary publics. In an attempt to reconcile the Foley-Ambach precedents with Bernal, Justice Marshall, ThurgoodThurgood Marshall argued that the former decisions had been based on a “political function” exception, which referred to positions clothed with significant discretion and authority to promote the values of democratic citizenship.

In the controversial 5-4 ruling in [c]Plyler v. DoePlyler v. Doe (1982), the Supreme Court struck down a Texas law denying undocumented children the free public education available to other children in the state. Because undocumented aliens were in the country in violation of federal law, Justice Brennan, William J.William J. Brennan acknowledged that they were not a suspect class. Rather than strict scrutiny, therefore, the majority applied an intermediate standard of heightened scrutiny. In order to justify the denial of educational opportunity to innocent children under this standard, the majority required the state to show that such denial would promote a “substantial state interest,” and they concluded that the state had failed to meet this burden. In 1994, the Plyler decision would provide part of the rationale for the federal courts to forbid California from enforcing California;Proposition 187[a]Proposition 187;overturning ofProposition 187, which would have denied most nonemergency benefits to illegal immigrants.

Reviews of Deportation Orders

The Supreme Court has rarely overturned the procedures used in the deportation of persons illegally residing in the country. The case of [c]Immigration and Naturalization Service v. Lopez-MendozaImmigration and Naturalization Service v. Lopez-Mendoza (1984), for example, dealt with the challenge of two undocumented Mexican immigrants who had been arrested contrary to the [a]Fourth AmendmentFourth Amendment’s prohibition against unreasonable searches and seizures. The two men argued that their confessions were the fruit of an illegal arrest, so that the confessions should be suppressed according to the exclusionary rule. The Supreme Court, however, ruled that the rights of Fourth Amendment apply only minimally to civil deportation procedures. The Court found that the Immigration and Naturalization Service, U.S.;and Supreme Court, U.S.[Supreme Court, U.S.]Immigration and Naturalization Service (INS) maintained an acceptable oversight program to monitor constitutional compliance. Deportation hearings, unlike criminal trials, were designed to prevent continuing violations of the law, and the minor benefits of the exclusionary rule would
not justify releasing a defendant whose mere presence is a violation of the laws.

In 1996, Congress enacted the [a]Anti-terrorism and Effective Death Penalty Act of 1996[Antiterrorism and Effective Death Penalty Act]Anti-terrorism and Effective Death Penalty Act (AEDPA) and the [a]Illegal Immigration Reform and Immigrant Responsibility Act of 1996Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), both of which limited the role of the courts to provide judicial review of deportation orders. American-Arab Anti-Discrimination Committee[American Arab AntiDiscrimination Committee]In [c]Reno v. American-Arab Anti-Discrimination CommitteeReno v. American-Arab Anti-Discrimination Committee (1999), the Supreme Court examined the application of the law toward eight resident aliens who belonged to an organization believed to support terrorism and Communismcommunism. None of the eight had been accused of a crime, and they claimed to be victims of selective enforcement, in violation of their rights to free speech and association under the [a]First
First Amendment. After the lower courts denied their petition for review, the Supreme Court upheld the deportations. Justice Scalia, AntoninAntonin Scalia wrote in the majority opinion that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.”

The American-Arab Anti-Discrimination Committee decision failed to clarify whether federal courts might have jurisdiction for habeas corpus relief in some other instances of deportation orders. In [c]Immigration and Naturalization Service v. St. CyrImmigration and Naturalization Service v. St. Cyr (2001), the Court by a 5-4 majority decided that the AEDPA and [a]Illegal Immigration Reform and Immigrant Responsibility Act of 1996IIRIRA did not eliminate opportunities for such relief in most situations. Claiming that the language in the legislation was ambiguous, Justice Stevens, John PaulJohn Paul Stevens asserted that the terms “judicial review” and “habeas corpus” had different meanings, and since denying a person the opportunity to seek a writ of habeas corpus probably violated the Constitution, the legislation should be interpreted in a manner that avoided examination of the constitutional issue.

In [c]Zadvydas v. DavisZadvydas v. Davis (2001), the Supreme Court put a limit on the time during which immigration officials are allowed to keep deportable aliens in custody while attempting to relocate them. When the INS ordered the deportation of Kestutis Zadvydas because of his criminal record, officials could not find a country willing to accept him. In balancing his liberty interest against possible threats to the community, the Court disallowed detention for more than nine months, except when the government could present strong evidence that civil confinement was justified.

Naturalization and Denaturalization

Because Naturalization;and Supreme Court, U.S.[Supreme Court, U.S.]Article I of the Constitution authorizes Congress to establish universal rules concerning the naturalization process, the Supreme Court has very rarely questioned congressional judgment in the matter. In [c]United States v. Macintosh[c]Macintosh, United States v.United States v. Macintosh (1931), the Court underscored congressional discretion when it upheld a law requiring applicants to pledge unconditionally to take up arms in defense of the country. The majority opinion defined naturalization as “a privilege, to be given, qualified, or withheld as Congress may determine.” The Court has never challenged the constitutionality of discriminatory regulations that deny naturalization on grounds such as extremist political affiliations, continuing polygamy, prior criminal records, or lack of English proficiency.

Since Citizenship;and Supreme Court, U.S.[Supreme Court, U.S.]naturalized citizens are considered equal to native-born citizens, however, the Supreme Court has placed an extremely high burden of proof for Citizenship;loss ofdenaturalization. In [c]Schneiderman v. United StatesSchneiderman v. United States (1943), the Court held that the federal government could not revoke the citizenship of a naturalized citizen because he had worked as an active member of the Communist Party after entering the country. The opinion for the Court insisted that denaturalization would require compelling and clear justification, such as treason or renunciation of citizenship. In [c]Afroyim v. RuskAfroyim v. Rusk (1967), the Court overturned the provision in the Nationality Act of 1940 that authorized loss of citizenship for having voted in a foreign election. In several cases, however, the Court has allowed the government to revoke citizenship if there is proof that dishonest information was given in the naturalization process. In [c]Fedorenko v. United
Fedorenko v. United States (1981), for example, the Court upheld the denaturalization of a person who had falsely claimed not to have participated in Nazi activities during World War II.Immigration law;and Supreme Court, U.S.[Supreme Court, U.S.]Supreme Court, U.S.[a]Constitution, U.S.;and Supreme Court, U.S.[Supreme Court]

Further Reading

  • Aleinikoff, Thomas, et al. Immigration and Citizenship: Process and Policy. 6th ed. St. Paul, Minn.: West Group, 2008. Comprehensive resource with good summaries and readable discussions of major laws and court decisions.
  • Bosniak, Linda. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton, N.J.: Princeton University Press, 2006. Addresses the complex issues of alienage law and the sociological aspects of outsider status.
  • Epstein, Lee, and Thomas Walker. Constitutional Law for a Changing America. 6th ed. 2 vols. Washington, D.C.: CQ Press, 2006-2007. Readable and interesting textbook written primarily for undergraduate students, with one volume devoted to constitutional rights and the other volume discussing the institutional powers of the government.
  • Hull, Elizabeth. Without Justice for All: The Constitutional Rights of Aliens. Westport, Conn.: Greenwood Press, 1985. Critical examination of the limited constitutional rights of resident noncitizens, temporary visitors, and undocumented aliens.
  • Hyung-chan, Kim, ed. Asian Americans and the Supreme Court: A Documentary History. Westport, Conn.: Greenwood Press, 1992. Critiques of major decisions relating to the admissions, civil rights, and deportations of Asian Americans during the last 150 years.
  • Neuman, Gerald L. Strangers to the Constitution: Immigration, Borders, and Fundamental Law. Princeton, N.J.: Princeton University Press, 1996. Dependable study of the controversies, laws, and court decisions concerning the rights of aliens and their children from the debates of 1798 until the late twentieth century.
  • Salyer, Lucy. Laws as Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law. Chapel Hill: University of North Carolina Press, 1995. Interesting account of the social and legal restrictions on Chinese immigration to the United States from 1891 until 1924.

Congress, U.S.

Constitution, U.S.

Frankfurter, Felix

Immigration law