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Monday, April 23, 2012

Arizona v. United States: A Lesson from History

Not surprisingly, the United States and a number of amici in Arizona v. United States rely on the 1876 decision of Chy Lung v. Freeman, and it goes unmentioned in Arizona's brief. The Chy Lung Court unanimously invalidated California's efforts to suppress Chinese immigration, concluding that immigration was an area of exclusive federal authority: “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” A companion case, Henderson v. New York, invalidated a similar New York law allegedly justified by the police power, explaining that "no definition of [the police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."

I wish one of the amici had mentioned that Congress agreed.

As Justice White famously explained in Runyon v. McCrary, Congress enacted the predecessor to 42 U.S.C. 1981(a) in 1870 to protect Chinese immigrants being persecuted in California. It provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Therefore Congress, like the Court, agreed that the risk of invidious prejudice was too high to allow states to discriminate against non-citizens. The Framers of the Constitution, likewise, recognized that state courts might discriminate when it granted non-citizens access to the federal courts in Article III.

Neither Chy Lung nor Section 1981 did anything for the Chinese in the long run; Congress passed the Chinese Exclusion Act in 1882, and the Court upheld it. But these actions make the point even more clearly: Even though Congress and the Court ultimately agreed as a policy matter that the Chinese had to go, they still insisted that the federal government was responsible for making that decision and carrying it out.

Posted by Jack Chin on April 23, 2012 at 05:13 AM | Permalink

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