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PaperclipPerfector  6d ago (text post)   29572 thread views

Culture War Roundup for the week of March 3, 2025

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if that list is the list

I would add a different emphasis. If this list is the list. That's the entire question. There is no need to reason backwards. You can very easily reason forward and just observe that they very clearly had a holding concerning a legal resident, spoke about a variety of considerations that come into play (some of which cut one way, some of which cut the other way), and then made a list of the situations that they considered were clear exceptions. They even talked about the reasons why they weren't adding other exceptions... and some of those reasons cut one way, and some of them cut the other way.

19th century law is irrelevant to illegal immigration, because "illegal immigration didn't exist at the time" is ahistorical

Is there any historical evidence that the Justices in Wong Kim Ark had engaged with any case of an illegal immigrant who just flagrantly violated the law by going to the US and then just staying... that was not just, "Yeah, dude's obviously getting deported"?

They even talked about the reasons why they weren't adding other exceptions... and some of those reasons cut one way, and some of them cut the other way.

Which paragraphs are these? (Text with paragraph numbers)

Is there any historical evidence that the Justices in Wong Kim Ark had engaged with any case of an illegal immigrant who just flagrantly violated the law by going to the US and then just staying... that was not just, "Yeah, dude's obviously getting deported"?

Unimportant people "flagrantly violating the law" generally don't get their cases appealed very high (if there's no legal ambiguity, there's no reason to hear the appeal...) and I don't know if any of the immigrants in these cases flagrantly violated the law, but the three petitions combined in Fong Yue Ting (cited in WKA), along with those in its precedents seem like reasonably close 19th century parallels for modern immigration law/enforcement. Close enough, at least, that I think it's unreasonable to say SCOTUS hadn't contemplated illegal immigration multiple times, prior to deciding WKA.

Which paragraphs are these?

The first examples are the ones I already cited, with blockquotes.

Fong Yue Ting

I would definitely bin these under the category of being just, "Yeah, dude's obviously getting deported." But let's take a look at a few pieces of the opinion of the Court. The syllabus begins with a banger:

The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.

The opinion basically begins by citing Nishimura Ekiu v. United States:

"It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe...

Then, citing Chae Chan Ping v. United States:

"Those laborers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the Legislative Department, can exclude aliens from its territory, is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be, to that extent, subject to the control of another power... [emphasis added]

That is, there is actually something lost in terms of jurisdiction if they are not able to exclude aliens. That would be very strange if such individuals are "subject to the jurisdiction thereof". What about the whole hullabaloo about whether you can call it an "invasion"? The Court cites Knox v. Lee to basically say that this question doesn't matter:

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. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other.

They cite various "commentators on the law of the nations":

"The Government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation... [emphasis added]

Shades of "implicit license". Again, the Congress has given no permission, no license, for them to be here at all. Actually, a bit more on licences:

Whatever license, therefore, Chinese laborers may have obtained previous to the act of October 1, 1888, to return to the United States after their departure is held at the will of the Government, revocable at any time at its pleasure...

and

In view of that decision, which, as before observed, was a unanimous judgment of the Court, and which had the concurrence of all the Justices who had delivered opinions in the cases arising under the acts of 1882 and 1884, it appears to be impossible to hold that a Chinese laborer acquired, under any of the treaties or acts of Congress, any right, as a denizen, or otherwise, to be and remain in this country except by the license, permission, and sufferance of Congress, to be withdrawn whenever, in its opinion, the public welfare might require it.

It really seems that illegal aliens simply lack any licence, implied or otherwise. Of course, if they are permitted, then they are subject to the laws:

By the law of nations, doubtless, aliens residing in a country with the intention of making it a permanent place of abode acquire, in one sense, a domicile there, and, while they are permitted by the nation to retain such a residence and domicile, are subject to its laws and may invoke its protection against other nations.

and

Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the Government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. [emphasis added]

Again, what if they are not permitted or licenced? Are they then entitled to the safeguards of the Constitution and so forth? The implication sure seems to be no.

So yeah, my read of that opinion is that it's basically just, "Yeah, dude's obviously getting deported." And moreover, it reaffirms that aliens need some sort of permission or license to be here (implicit or otherwise), without which, it's not even clear that we can even say that they are entitled to any of the safeguards of the Constitution (much as you and I might want it to be otherwise), much less that they are considered subject to the laws or jurisdiction even if they were so entitled.

Why would the Wong Kim Ark Court even consider the question of whether blatantly illegal aliens were some special class of exemptions in a Constitutional protection when they had already linked to prior precedent that essentially said that they were categorically ineligible to appeal to any sort of Constitutional protection whatsoever?

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