Race, Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case
Orgad, Liav, Ruthizer, Theodore, Constitutional Commentary
120 years ago, in May 1889, the U.S. Supreme Court ruled that "the power of exclusion of foreigners being an incident of sovereignty ... cannot be granted away or restrained." (1) Sixty years later, in January 1950, at the height of the Cold War, the U.S. Supreme Court reaffirmed the plenary power doctrine by holding that "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." (2) Another sixty years have passed and more recently, in February 2009, the U.S. Court of Appeals for the D.C. Circuit held that "a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion and admission." (3) The principle to decide "which alien may, and which alien may not, enter the United States, and on what terms," Judge Randolph firmly asserted, "has been a matter of political determination by each state--a matter wholly outside the concern and competence of the judiciary." (4)
In principle, the political branches continue to enjoy plenary power to decide who may enter and who may stay. But this is not the full picture. One should not think that nothing has changed since the nineteenth century, and that the political branches are given carte blanche to decide the rules of the immigration issue. As a matter of fact (and law), a lot has been changed since--in the United States and elsewhere. In the most detailed book on ethnic selectivity in immigration law, Christian Joppke shows how liberal democracies have generally abandoned ethnic selection and moved in a more liberal course. (5) Changes in domestic law and international human rights law have restrained states' power to regulate the terms for immigration selection. States can still control immigration, but they are more limited by some base-level standards of permissible and impermissible criteria. Determining the limits of what is permissible, and discussing whether permissible criteria include decisions made on the basis of race, religion and nationality, is the focus of this Article.
The topic of permissible and impermissible immigration criteria is a neglected field in constitutional law and political theory. There is little literature on the ethics of criteria for exclusion and inclusion of immigrants. It is also rare to find a detailed account on the ethics of permissible and impermissible criteria in other fields, such as security policies. Back in 1997, Vice President Al Gore's Report on Aviation Safety and Security noted that it is permissible to develop and implement profiling systems in aviation procedures for questioning and searching passengers--as long as the profile is not based on "national origin, racial, ethnic, religious or gender characteristics" of citizens. (6) In Canada, a Governmental Commission concluded that national security investigations can be based upon country of origin, but "must not be based on racial, religious or ethnic profiling." (7) In Europe, the Council of the European Union recommended that Member States develop and use terrorist profiles in combating terrorism--with special attention given to their use in immigration context. Factors of terrorist profiles may include nationality, place of birth, age, gender, and physical distinguishing features but must exclude race, ethnicity, and religion. (8) Why are these criteria impermissible, while others are permissible? What are the factors that make the difference? Little literature exists on the theory and typology of immigration criteria. This Article is intended to fill the gap.
The Article proceeds as follows: Part I offers an innovative approach to tackle the issue of immigration restrictions. It challenges the traditional concept in the literature under which criteria and justifications for controlling immigration are tied together. According to the conventional view, there are some permissible and impermissible justifications to limit immigration and, accordingly, some permissible and impermissible criteria. …