Immigration had attained a significant and remarkable degree of discre-
tion. But the Bureau of Immigration did not emerge from its authorizing
statute, the Immigration Act of 1891, fully developed with the power and
discretion that would later distinguish it from other administrative agen-
cies. Nor did it achieve its distinctive power without opposition, as the
resistance of Chinese and other immigrants reveals.

Far from being, as Preston suggests, the passive, disorganized, and igno-
rant victims of immigration officials, Chinese took a leading role in the
debate over enforcement of immigration laws. Though Chinese were the
objects of the most discriminatory immigration laws in the United States,
they were not content to remain on the fringes of American society or to be
shoved out of the country altogether. As Charles McClain and other histo-
rians have illustrated, well before 1891 the Chinese who immigrated to the
western states learned how to use the law and the courts to mitigate the
effects of the hostile and discriminatory legislation directed against them. ⁷
By the time the Chinese exclusion law was passed in 1882, the path to the
courts had been well marked and leaders in the Chinese community spoke
with ease and familiarity about the rights owed them under treaties and the
Constitution. ⁸ With the aid of attorneys who transformed Chinese com-
plaints into recognizable legal claims, Chinese immigrants repeatedly
turned to the federal courts at San Francisco to contest the enforcement of
the Chinese exclusion and general immigration laws and enjoyed remark-
able success.

The success of Chinese in the federal courts is surprising, given tradi-
tional accounts emphasizing judicial deference in immigration cases. The
intervention of the federal trial courts in San Francisco suggests that judges
played a more active role, at least initially, a fact missed by legal scholars,
perhaps because they have focused on the Supreme Court and East Coast
European immigrants. The published Supreme Court opinions regarding
immigration reveal a narrow view of judicial power to intervene. But the
unpublished federal trial courts' records indicate that within their jurisdic-
tion, the lower courts remained active participants in the enforcement of
the Chinese exclusion laws.

The federal trial courts' actions in the Chinese cases further indicate that
the role of courts in the Progressive Era was more complex than historians
have previously recognized. Traditionally, scholars studying courts of that
period, such as Arnold M. Paul, Benjamin R. Twiss, Louis B. Boudin, and
William E Swindler, have focused on the Supreme Court and its decisions
regarding social and economic regulations. ⁹ Writing in the legal realist
tradition, such scholars, discarding the notion that judges simply identify
and apply law in a neutral manner, highlighted the political nature of

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