Let’s not give up hope, nor give into despair or rage. But unfortunately, we do not have legal precedent on our side; in fact it is against us. The Supreme Court Case Korematsu v. United States ruled Executive Order 9066 on Japanese Internment constitutional and the The Chinese Exclusion Case 130 U.S. 581 ruled the Chinese Exclusion Act consitutional. Then we have Dred Scott v. Sandford and Plessy v. Ferguson. All these cases have been labeled the “Anti-Canon”, Supreme Court cases which are now seen as exemplars of bad legal decision making. We need to develop an argument that overcomes the burden of proof required to overturn Supreme Court legal precedent. Trump is fully aware the cards are stacked in his favor. If we lose, Executive Order 13769 will enter into the “Anti-Canon.”
CNN Article: “Why Trump is making Muslims the new Chinese”
By Mae Ngai
“When the US Supreme Court upheld the legality of Chinese Exclusion in 1889, it did so on grounds of national security. The court’s decision should sound familiar and also raise alarm:
‘To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. … If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.’
“Accordingly, the court pronounced the regulation of immigration to be a part of the Congress’s conducting of its foreign policy, in the same basket as declaring war and ratifying treaties and outside the purview of the Constitution. This view underwrites the basic principle of Congress’ “plenary power,” or absolute authority, over immigration, and with it, the use of broad discretion by the executive in its enforcement.”
“Taking another page from Chinese Exclusion, Trump’s executive order may yet serve to exclude all or nearly all Muslims beyond those from the seven banned countries. The order not only calls for “extreme vetting” of all refugee applicants (who are already subject to four to five rounds of rigorous screening) but also for enhanced “standards” for scrutinizing all persons seeking admission, whether as immigrants or visitors. These mechanisms will include personal interviews to determine fraud and an “applicant’s likelihood of becoming a positively contributing member of society.”
“In Trump’s words, “We only want to admit those into our country who will support our country and love deeply our people.” The administration’s default position is that Muslims do not “love deeply” America.”
“Notwithstanding public outcry against the Muslim ban, it is hard to predict whether the federal courts will uphold the ban on grounds that the President acted in the national security interest or strike it down as invidious religious discrimination. In other words, it remains to be seen how far we have really come from the odious era of Chinese Exclusion.”
