In this Essay, I want to make the argument that the validity of the Chinese Exclusion Case is the central question in the challenges to President Trump’s travel bans. The facts are closely analogous. Moreover, the Chinese Exclusion Case is the seminal, canonical decision establishing vast federal power over immigration control. Resolving the present challenges to the Trump Executive Orders requires us to determine, once and for all, if that 1889 decision was rightly decided. But if that case cannot survive given what we know of consti- tutional law in the twenty first century, we must be precise about what exactly the Court got wrong 128 years ago.
Michael Kagan directs the Thomas & Mack Immigration Clinic and teaches administrative law, professional responsibility, international human rights, and immigration law at the University of Nevada, Las Vegas, William S. Boyd School of Law. In both his research and his clinical teaching, Prof. Kagan focuses on the tension between immigration law and civil rights.
Michael Kagan, Is the Chinese Exclusion Case Still Good Law? (The President Is Trying to Find Out), 1 Nev. L.J. Forum 80 (2017).