Donald Trump
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Ping immigrated to California legally, and worked there for 12 years before leaving for a visit to his family. He knew that immigration laws were getting more restrictive, but carried a government certification promising he could return. But while he was traveling back to California, the law changed. His government papers were now worthless. When he arrived in San Francisco, he was detained, held for months, and finally deported.

This happened in 1888, not 2017. Ping, full name Chae Chan Ping, was caught on the horns of America’s first immigration ban, the Chinese Exclusion Acts. From 1882 to 1943, these laws prohibited all Chinese nationals, except merchants and students, from entering the country. Although the 1882 act permitted Chinese with a certificate of prior residence to return to the U.S., while Ping was on the steamer ship from China to California, Congress declared these certificates invalid.

In Ping’s case, and for many years after, the courts let us down. In Chae Chan Ping v. United States (1889), the Supreme Court acknowledged that there were no actual hostilities with the banned Chinese. Nevertheless, it held, if Congress “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,” it had the discretion to exclude them.

Congress built a vast regime on the foundation of Chae Chan Ping. The restriction on Chinese immigration lasted until 1943. In 1917, Congress expanded it to exclude Japanese, Indians, Turkish, and all others from a “Barred Asiatic Zone” that swept across Asia, Polynesia, and the Middle East. At the same time, Congress also banned entry of the poor, the disabled, and political radicals. Soon after, Congress placed national quotas on immigrants from Europe, largely to limit Jews, Italians, and other “off-white” Europeans entering the U.S. That quota system lasted until 1965. In order to facilitate exclusion, Congress also stripped courts of the power to review many exclusion decisions. The Supreme Court upheld all of these measures. The repercussions of these decisions affect immigrants and non-immigrants alike. Because of the wide discretion courts approved, even U.S. citizens have fewer rights to due process, freedom from search and seizure, equal protection, and free speech at the border than in almost any other context. Border officials today may detain and demand to search you, your cellphone, and your computer without even the suspicion required to pull you over on the highway.

When customs officials this year began stopping and detaining visa and green card holders, and approved refugees, the parallels to the bad old days of Chinese exclusion were clear. This time, however, the courts are not cooperating. The U.S. Court of Appeals for the Ninth Circuit, along with federal district courts across the country, have demanded that we abide by the constitutional principles that truly make America great. Of course, so far, courts have been faced with a hastily-constructed executive order. It is not clear what they will do with the new ban, or whether they would uphold the ban if Congress enshrines it in a statute.

A century ago, the judicial system failed us. The courts bent and almost broke the Constitution to uphold exclusion and deportation. Today, judges, at the urging of volunteer lawyers across the country, are upholding constitutional values in the face of bigotry and fear. As lawyers, we should be proud of our profession, and hope that it continues to do better this time. •

Ping immigrated to California legally, and worked there for 12 years before leaving for a visit to his family. He knew that immigration laws were getting more restrictive, but carried a government certification promising he could return. But while he was traveling back to California, the law changed. His government papers were now worthless. When he arrived in San Francisco, he was detained, held for months, and finally deported.

This happened in 1888, not 2017. Ping, full name Chae Chan Ping, was caught on the horns of America’s first immigration ban, the Chinese Exclusion Acts. From 1882 to 1943, these laws prohibited all Chinese nationals, except merchants and students, from entering the country. Although the 1882 act permitted Chinese with a certificate of prior residence to return to the U.S., while Ping was on the steamer ship from China to California, Congress declared these certificates invalid.

In Ping’s case, and for many years after, the courts let us down. In Chae Chan Ping v. United States (1889), the Supreme Court acknowledged that there were no actual hostilities with the banned Chinese. Nevertheless, it held, if Congress “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,” it had the discretion to exclude them.

Congress built a vast regime on the foundation of Chae Chan Ping. The restriction on Chinese immigration lasted until 1943. In 1917, Congress expanded it to exclude Japanese, Indians, Turkish, and all others from a “Barred Asiatic Zone” that swept across Asia, Polynesia, and the Middle East. At the same time, Congress also banned entry of the poor, the disabled, and political radicals. Soon after, Congress placed national quotas on immigrants from Europe, largely to limit Jews, Italians, and other “off-white” Europeans entering the U.S. That quota system lasted until 1965. In order to facilitate exclusion, Congress also stripped courts of the power to review many exclusion decisions. The Supreme Court upheld all of these measures. The repercussions of these decisions affect immigrants and non-immigrants alike. Because of the wide discretion courts approved, even U.S. citizens have fewer rights to due process, freedom from search and seizure, equal protection, and free speech at the border than in almost any other context. Border officials today may detain and demand to search you, your cellphone, and your computer without even the suspicion required to pull you over on the highway.

When customs officials this year began stopping and detaining visa and green card holders, and approved refugees, the parallels to the bad old days of Chinese exclusion were clear. This time, however, the courts are not cooperating. The U.S. Court of Appeals for the Ninth Circuit, along with federal district courts across the country, have demanded that we abide by the constitutional principles that truly make America great. Of course, so far, courts have been faced with a hastily-constructed executive order. It is not clear what they will do with the new ban, or whether they would uphold the ban if Congress enshrines it in a statute.

A century ago, the judicial system failed us. The courts bent and almost broke the Constitution to uphold exclusion and deportation. Today, judges, at the urging of volunteer lawyers across the country, are upholding constitutional values in the face of bigotry and fear. As lawyers, we should be proud of our profession, and hope that it continues to do better this time. •