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Friday, September 13, 2013

The Lost Brown v. Board of Education of Immigration Law

Have you ever had one of those co-authors who held up a project for years by sitting on a draft?  Yeah, my co-authors have too.  In 2001, I started a project with two students which has just now been published in the North Carolina Law Review as part of a wonderful symposium hosted by Al Brophy.   The paper explores Lee Kum Hoy v. Murff, 355 U.S. 169 (1957), in which the Supreme Court granted certiorari to evaluate the constitutionality of a policy of the Immigration and Naturalization Service of blood-testing all Chinese, and only Chinese, applicants for admission to the United States as foreign-born children of U.S. citizens.  (This was before DNA testing was invented; the A-B-O blood grouping of the children was compared to that of the claimed parents).  The Second Circuit upheld the policy over a dissent by Jerome Frank.

The Court ultimately remanded the case on other grounds, without reaching the merits.  However, based on the briefing, the papers of the justices, and not least the political context, it appears that five justices were prepared to hold the policy unconstitutional.  This would have been remarkable, because in cases like Chae Chan Ping v. United States, and Fong Yue Ting v. United States, the Court held that the federal government could freely discriminate on the basis of race in the area of immigration--and to this day courts seem to say that these old cases remain good law.   Accordingly, for the Court to apply Bolling v. Sharpe to the immigration context would have been remarkable.  But for the Court to grant certiorari in the middle of massive resistance to Brown and uphold racial discrimination in any context would have been a significant self-inflicted wound.

Posted by Jack Chin on September 13, 2013 at 06:24 AM | Permalink

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It looks very interesting, Jack, and I hope to read it soon. Perhaps you can foreshadow for me a bit. I would think that a case like this would plausibly differ from Chae Chan Ping and Fong Yoe Ting in that the (purported) rights of citizens (the U.S. Citizen parents) to live with their family members would be implicated. (I've argued that this _ought_ to make a difference in this paper:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641346

and though the court hasn't accepted this argument, at least several justices at different times have been sympathetic to it.)

Is there any evidence that the court had considerations like this in mind in this case? Or were they considering (obviously morally right) much broader claim that the constitution flatly ruled out racial discrimination in immigration no matter whether the rights of citizens were implicated or not?

Posted by: Matt Lister | Sep 13, 2013 9:32:18 AM

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