Casebook (CB): T. Alexander Aleinikoff et al., Immigration And Citizenship: Process And Policy (7th ed. 2012). I. FOUNDATIONS

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1 Casebook (CB): T. Alexander Aleinikoff et al., Immigration And Citizenship: Process And Policy (7th ed. 2012). I. FOUNDATIONS Class 1: The concept of citizenship Immigration is becoming a bigger issue in the US 10 million immigrants living without authorization 9/11 changed implications for immigration Increasing globalization We will ask four questions in this class: 1. Who gets to come here as a migrant? a. The answer has been changing over the last couple hundred years b. We ve always felt ambivalent about immigrants some sentiments/fears about immigrants persist 2. When and why can we ask people to leave? a. 400,000 people are deported every year from US b. Why is deportation such a central component today? 3. What rights do immigrants have? a. Ex. Do they get the same right to free speech, free exercise of religion? Do they get a neutral judge for deportation hearings? 4. Who gets to decide the other questions? (ex. States? Federal government?) a. What s at stake? i. Ex. recent lawsuit in Arizona about regulating immigration where US sued Ariz. US argued that Ariz. lacked authority, US won in SCOTUS. b. Ex. President said that if you came here as a kid, went to school here, etc., you won t get deported.! issue of separation of powers (Congress, etc. said president can t do this without overstepping) You can t just look at the formal rules to understand immigration Jus soli: US v. Wong Kim Ark (SCOTUS, 1898, p. 52) Facts: Wong Kim Ark was born in SF, grows up there, takes some trips to go home and see family in China. One time after he comes back to US, he can t come back on the grounds that he s not a citizen. (Like through the non-citizens line at customs.) Prof.: Why would it matter if he s a citizen? o Court doesn t really say o Probably because he s Chinese so there are other limitations. " 1882 Chinese Exclusion Act essentially excluded nearly all Chinese immigrants from entering the US. So if he s not a citizen, he s subject to the Chinese Exclusion Act and wouldn t be able to come into the country. o Idea: if you re a citizen then you re entitled to reside in the country Prof.: Why can t you kick citizens out? What gives citizens the right to live here?

2 o One idea: you owe allegiance to the king, he owes you protection. US assumes that if you are a citizen, you have an unconditional right to live in the US. But there s no SCOTUS case that holds this clearly yet everyone agrees that this thing is true. o There is historical evidence re: exile, but it wouldn t be permitted today Idea in this case is that if you re not a citizen, you don t have an unconditional right to live in the US. Two paths to becoming a citizen: 1. By birth 2. Naturalizing " Why didn t WKA naturalize? He couldn t because it was prohibited by statute! There were racial restrictions built into their naturalization laws (i.e., only free white persons could be naturalized) through the Civil War. After the Civil War, US explicitly added free African Americans. Until 1952, there are racial restrictions. Issue: Is WKA a citizen by birth? o Where can we find the rules to see who counts as a citizen? " Constitution but it s not in the original constitution! But different offices in Constitution require citizenship (Presidency, Congress/House/Senate) Prof.: Why didn t they write down a definition of citizen though? o Either everyone agreed or disagreed as to the correct definition. " Two big issues during the founding: 1. Status of slaves/slavery 2. Limiting the government s powers who gets to decide who s a citizen, etc? o As a result of Congress indecision, one of the most important things (who is a citizen) isn t in the Constitution! The constitution basically doesn t answer any questions about citizens/non-citizens. " Historical events Dred Scott SCOTUS says freed slaves aren t citizens 14 th amendment! constitutionalize 1866 Civil Rights Act o Sec. 1: all persons born in the US and subject to the jurisdiction thereof.! under these words, is WKA a citizen. " WKA was born in the US (no dispute here, so it s a great test case for the government) Elk v. Wilkins Native American tries to vote and isn t allowed to; says he s a citizen, but court says he isn t. o 1866 Civil Rights Act said not subject to any foreign power because he was in a tribe, he couldn t have sole allegiance to US

3 o But WKA is subject to a foreign power just like Elk too! Dissent wants to focus on allegiance; Majority focuses on general territorial theory. o There are a few questions to resolve regarding allegiance: " What do they mean by allegiance? How do we determine whose allegiance would be owed from the moment that person is born? Court: because his parents are subjects of Chinese government, according to Chinese law, their son is a Chinese citizen. o It seems that any parents who come from a jus sanguinis country s kids would never be US citizens because they d be citizens of another country! o There used to be an idea that dual citizenships were deeply undesirable and even illogical. Territorial theory (majority)! problem: what about Elk? Allegiance theory (dissent)! what about all noncitizen s kids (who get citizenship from parents country via jus sanguinis)? o Majority s argument against allegiance theory: it would make lots of Europeans kids not citizens too! o How do we measure allegiance for the kids? " Illogical no one has allegiance at birth " WKA s parents have lived in US for a long time (weren t allowed to naturalize) " What about the Europeans who could naturalize but chose not to? Today, we have a parallel situation regarding undocumented migrants who can t naturalize. Congress tries to pass a law that doesn t let the children of undocumented migrants become citizens by birth How do you argue against such a law? o Consent-based theory o Distinguish WKA: " There s a difference between temporary vs. permanent Factual residence won t work (many undocumented people stay here forever) " There s a difference being here without permission issue of consent WKA s parents were here with permission from US o But although US let WKA s parents live here, they clearly didn t want them to be citizens o Consent theory is circular people are citizens if the government consents to them being citizens but what qualifies as consent? We don t really know. " 14 th Amendment might be the government s consent that they re citizens. " Consent theory The government is clear about which kids they don t want to be citizens. Forget about distinguishing WKA. o Consequences of allowing undocumented immigrants children to be citizens

4 " There are incentives to coming to America, having a baby ( anchor babies ) But children can t sponsor the parents until they re 21 years old Do ordinary constitutional norms apply when we ask these boundary level questions? I.e., is entry to the community (ex. US) governed by the same rules that govern the community (US) Why might we want a strong jus soli rule? We re a country of immigrants/matching allegiances It s sort of a bright line rule it s really simple and easy to administrates o But maybe this isn t it because we also have jus sanguinis rules. Equality/fairness it would be unfair to tell someone born here that they re not a citizen! you can t control where you re born When/why are you entitled to citizenship? If you ve lived here your whole life you have a strong connection to this land Institutional we don t want to end up with a separate democracy Recap of Class 1 We started by talking about who gets to be a US citizen? What is the significance of citizenship? o Prof.: What if we tell lawful permanent residents that they have all the rights of citizenship but they can t naturalize? " Citizenship is more than a bundle of rights, also an abstraction with significance (ex. status, respect), i.e., the status of being equal with your peers It s not just the formal legal rights that are important citizenship also embodies a sense of belonging o It s not just the legal claim that s at stake (immigrants want to belong, but opposition wants to maintain exclusivity) o An idea behind citizenship is that it maintains some sense of exclusivity What rights come with citizenship? o Wong Kim Ark identifies that with citizenship comes the unconditional, unqualified right to reside in the US. So if you re a citizen, you get in. o What other rights does citizenship give you? " Voting rights historically qualified (property owners, ex. needed an Amendment to give citizen women the right to vote). States would also confer voting rights on people who aren t citizens. " Employment opportunities, your ability to participate freely in the labor market " Right to come and go from the US as you please " Right to diplomatic protection abroad Today, under modern statutory and constitutional law, what differentiates people who are citizens vs. non-citizens?

5 Constitution says very little about citizenship; only talks about citizenship at birth when the 14 th Amendment is adopted Reading the 14 th Amendment: o Territorial theory People are subject to the jx of their states if they re present in the territory (WKA majority) o Allegiance theory confer citizenship on those who have undivided allegiance to the country (WKA dissent s stated theory) " But how can a person have allegiance to anyone at birth? " They focused on the parents allegiance not the child s o Consent-based theory it s clear which group should/shouldn t be citizens (WKA dissent s actual theory) " But what counts as consent? Ex. Congress wrote down a birth-based consent, so why do we need anything else? Why would we pick and choose between these theories or between jus soli (being born here) and jus sanguinis (citizenship carries from the parents)?! Theories from class discussion: o Allegiance match citizenship with people who are truly allegiant o Caste/class divide concerns we don t want to create this sort of caste system, so relying on jus soli alleviates these concerns o Fairness you can t control your place of birth so you shouldn t be punished for the place " Problem!: no one has control over the birthplace so someone outside the US also can t control their birthplace o Practicality citizenship could exist to influence people s desire to migrate. The jus soli rule would encourage people to come (back then, we had a huge country and very few people) o Clarity jus soli provides a clear status, no weird questions, easy to administer Class 2-3: Federal authority to regulate immigration What is the extent of the federal government s power to regulate the entrance of migrants into the US? Chae Chan Ping v. US (SCOTUS 1889); handout 1 Facts: CCP is a Chinese immigrant who comes to the US in 1875, in 1887 he goes back to China to visit his family (Sept. 1888). While he s on the boat coming back to the US, the US passes the Scott Act (Oct. 1, 1888) to bar immigrants return even with a certificate. (He has a certificate) Historical background: o Why did it take so long for a case like this to come to SCOTUS? " We had an open border policy for a while (inducement for migration to the US) " Many state laws were passed from the 1830s through the 1880s that tries to regulate immigration

6 " From the federal government s perspective, there was no statute that formally restricted immigration until the 1875 Page Act (singled out classes of people including criminals, women who were understood to be lewd / debauched ) 1875 Page Act was designed to target Chinese immigrants 1882 Chinese Exclusion Act if you re a Chinese laborer, you can t enter the country o After the railroad is completed, there s rising resentment against the Chinese Procedurally, he found a habeas suit he said he s imprisoned unlawfully. He s stuck aboard the ship when he files the suit. Legal claim is based on the treaty (1 st argument) between US and China that says there is free migration, commerce between the two countries o CCP argues that Congress s actions violate the treaty terms " Court: treaties and Congressional acts have the same status in our country; we use the last in time rule (the most recent indication of our political mood, etc.). Also, treaties are just bargains, promises Supremacy clause (Art. 6) Court suggests that treaties have the same Constitutional status as statutes This is the first appearance of the last in time rule. It s a pretty standard doctrinal component of foreign affairs law. o Prof.: why doesn t the federal government just renegotiate the treaty? " History: treaty is first adopted in Because of West coast pressure, they renegotiate in 1880 (pursuant to these amendments, Congress passes the 1882 Chinese Exclusion Act). CEA says new immigrants can t come but if you have a certificate, you can come and go if you please more negotiations to the treaty (but China rejected this) o CEA is extended for 20 years o Anyone who leaves the country is prohibited from returning o To get China to sign on: " We ll exclude people who have family here or people who have assets in the US. These people can come back " Also, US will promise to protect the property of Chinese immigrants and the immigrants themselves while they re here. Congress passes the Scott Act in light of this failed treaty negotiation. CCP s other arguments (aside from the treaty claim): o CCP reasonably relied on the certificate that would allow him to return " There was a retroactive application of the law (the law was applied after he engaged in the conduct, he had the certificate, he was on the boat) " But Congress clearly intended for this law to apply to CCP " Note: in modern law, we ll have to consider whether Congress intended laws to apply retroactively

7 o Court: the certificate/migration isn t like real property. If the treaty had secured property rights and he was complaining about his property rights being taken away, we would ve said that Congressional acts can t take away his prior acquisition of property. " CCP argument: this piece of paper conferring his right to return is like property. Court: draws on the distinction between rights (can t take these away) and privileges (you can take them away) (2 nd argument) o What is the court worried about? If they concluded that the paper = vested right, what would the implication have been? " From the perspective of international bargaining, it would ve affected our ability to enter into agreements " All the other Chinese immigrants couldn t be kicked out The court didn t want to close the door to these issues by accepting the vested rights issues. Court: spends the most time talking about whether Congress can exclude people from the country. (3 rd argument, most of the opinion this isn t raised by CCP; this was conceded to Congress) o Why do we need to ask if the government has the power to do something? " In theory, the federal govt is a govt of enumerated not plenary (anything) powers. The Constitution gives the federal govt authority to do things. " But the power to exclude immigrants isn t listed in the Constitution! The federal govt isn t given the powers to include/exclude immigrants by the Constitution. There s no obvious, textual basis for federal govt being able to regulate immigration. o Court: they list the other enumerated powers (treaties, war power, naturalization) " Counterargument: (CCP didn t argue against this) Treaty treaty vs. statute rules (different) Congress didn t comply with these rules by making a statute that violates a treaty War power but there s no declared war (but look at how they describe Chinese immigrants as dangerous-ish) Naturalization if naturalization is included, but immigration isn t, that exclusion of the immigration power was intentional " The court s textual arguments are sort of weird Prof.: Why did everyone think that, obviously, the federal govt had the power to exclude people from entering? (Class discussion) / Why is it necessary? o Exclusivity/closure o Benefits administrative messes involved in conferring these benefits, rights associated with citizenship o Physical security ex. hostile takeovers, letting dangerous people into the country " It s easier to make an exclusion decision over dealing with someone in the criminal system (exclusion as substitute system) o Identity ( political security) what s the country about? What if people come in the country with different ideas of how to run the US " Self-selection characteristic involved in migration as well

8 o Independence sovereignty within your borders " What about individual states that don t have this? Where in the federal government is the immigration power? o Court says, immigration power is inherent in sovereignty (which doesn t really tell us anything) Court: The decision to exclude lies with the judiciary (?) a person s only redress is through the political branches Everyone accepted that CCP had access to the courts. o But maybe it just means that CCP doesn t have the same rights/ability to bring certain legal claims before the court " Strongest reading: there s no constitutional limit to exclusion " Less strong reading: there are limits that have to be entrusted to the political branches Political question doctrine despite this core idea that whenever there s a constitutional right, there has to be a judicial remedy o Ex. impeachment procedures if president says these aren t followed, the courts don t want to get involved because they don t think that it s their place o So here, under the political question doctrine, courts aren t the ones to decide if the limits are judicially enforced Hypo: pre-ccp; Congress didn t pass this act (so if you have a certificate, you can still come back) o What if the president orders that every certificate by a returning Chinese immigrant is rejected? After CCP, we know there s this authority to exclude but how far does it extend? What are limits on this power? 10 th Amendment all powers not given to the federal govt are reserved for the states. Why can t we just use this logic? Chy Lung v. Freeman (SCOTUS 1875); handout 2 Facts: California statute requires a bond for certain types of people arriving on the ship. The shipmaster (not you) has to sign a bond to indemnify the state. Bond requirements are pretty intense (pretty high expenses). Or you can just pay a cash sum to the inspector who gets to keep 20% of it. Chy Lung challenges the constitutionality of the statute; court strikes it down. Court: passage of laws which concern the admission of citizens and subjects of foreign nations belongs to Congress, and not to the States (p. 3) o Congress can control commerce, foreign affairs. " State can regulate if it s necessary to protect itself, its inhabitants, etc. But the court thinks that the State did way more than what was necessary and the statute doesn t exist to protect, but to make money. Money just goes to general treasury of state, doesn t go towards the immigrants. Even if the immigrant has the money, only the

9 owner of the vessel can pay. so this is like getting money from the general carriers. Because the burden is so high, no shipmaster can really comply, so basically the law was designed to keep everyone out. What is court worried about? o China might get mad court says if it were US citizens, we d be really angry. o States shouldn t get to pass these rules because the federal govt is the one engaged with foreign relations with China. o We don t want states to adopt rules that would result in foreign affairs problems. " BUT the court says that states CAN actually do many things that cause foreign affairs problems (with the necessary caveat); however, these rules would have a different standing. Court: if you weren t creating excessively onerous bond conditions, etc., maybe this would be ok. Prof.: Take away: 1. Chy Lung contextualizes CCP. In CCP, you think about equality, constitutional problems, etc., why isn t it a 14 th Amendment challenge? i. Chy Lung illustrates that both Chy Lung and CCP are federalism cases. No one doubted the power of the govt to regulate migration what was contested was if it s the federal or state govts that have this regulation power 2. Chy Lung and CCP have this idea about mutual exclusivity if the state has the power, the federal govt doesn t and vice versa! they both can t have it. i. This is more about ConLaw than immigration. The federal and state were dual sovereigns with mutually exclusive regulatory powers. ii. Does this model of dual sovereign/mutually exclusivity hold or give way to something else? 3. Chy Lung does NOT stand for the proposition that the states can t do anything. The court acknowledges that there is a role for states to play in regulating immigrants that would affect immigration. If the federal govt has this power, how far does this power go? Recap of last time: Why does citizenship matter? (Class discussion) It gives us rights (ex. right to vote, right to work) and legal claims o What are the rights that citizens have that differentiate them from non-citizens? As a label, it signifies belonging/membership in a polity o Closest ex. to this might be re: civil unions label for gay marriage Exclusion and Chae Chan Ping CCP Holding: the federal govt has constitutional authority to exclude an arriving alien from entering the country But where is this exclusion power listed?! it s not really listed anywhere!