Supreme Court Precedents Say Congress Must Make Immigration Policy—Not International Bureaucrats

By Juan Mann,, July 31, 2006

The ongoing scandal of the internationalist Security and Prosperity Partnership of North America [SPP] continues unabated despite the recent demand for full disclosure by Congressman Tom Tancredo.

Behind-closed-doors "working groups" of unelected bureaucrats from Canada, Mexico and the United States have been hammering away at the sovereignty of these three countries—apparently seeking to merge them into a regional superstate.

But now the debate is in the open. And here’s my contribution: over 100 years of United States Supreme Court precedent on immigration law cries out against this sell-out.

Since the late 19th Century, the Supreme Court has acknowledged the unequivocal authority of Congress in setting immigration law and policy.

According to this body of Supreme Court case law, Congress alone can make the rules on this issue, with delegation thereafter to executive branch officers to carry out the policy.

Any future "agreements" by SPP bureaucrats would have absolutely no authority in law unless ratified by Congress.

Now, if SPP border-busting language creating the "free flow of people" throughout North America were somehow rammed through Congress in the dead of night, that would be another story. My argument would not apply if it could be said that Congress had approved an SPP immigration scheme.

But, as of now, that hasn’t happened. And as long as the SPP’s behind-closed-doors immigration policy-writing continues without Congressional authority—indeed, without Congress’ knowledge—it violates the clear authority of Congress as the sole author and guardian of American immigration law.

There is an interconnected body of Supreme Court case law recognizing the plenary power of Congress over immigration law enforcement.

The story begins with the Chinese exclusion cases in the 1880s and moves on to decisions involving the exclusion and deportation of various anarchists, Communist party members, subversives and even of an admitted homosexual under the then existing "psychopathic personality" grounds for exclusion.

The particular grounds discussed in these cases would no doubt be objectionable to many today. But these cases cannot simply be dismissed or disregarded as "racist," "discriminatory" or "unfair." They remain as valid precedent, recognizing the unquestioned power of Congress to set the standards for the admission, detention and deportation of foreign nationals. And, of course, this power is also an inherent attribute of American sovereignty.

The case law citations of these "old chestnuts" (lawyers’ shorthand for venerated classic cases) appear in some of the most recent Supreme Court cases upholding detention and deportation provisions as written by Congress. Bottom line: they’re still good law.

So any future wholesale admission of foreign nationals by a stroke of the SPP bureaucracy’s internationalist pen would be complete anathema to just about every U.S. Supreme Court case on the subject for the past 100 years. Congress’ plenary power over immigration is still the law of the land.

For all you legal eagles out there—Congressional staffers, take note!—I’ve compiled some quotations and highlights from this fascinating body of immigration law enforcement case law.

All of the cases listed here validate the deportation or exclusion of every single alien considered. They also support Congress’ right to set the policy—however right or wrong—and the authority of executive branch officers to carry it out.

  • "The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest." Chae Chan Ping v. U.S., 130 U.S. 581 (1889).

  • "Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206 (1953); citing The Chinese Exclusion Case, 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698 (1893); Knauff v. Shaughnessy, 338 U.S. 537 (1950); Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

  • "The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." Lem Moon Sing v. U.S., 158 U.S. 538 (1895).

  • "At the outset we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides." Knauff v. Shaughnessy, 338 U.S. 537 (1950); citing Nishimura Ekiu v. United States, 142 U.S. 651, 659 ; Fong Yue Ting v. United States, 149 U.S. 698, 711.

  • "The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U.S. 304; Fong Yue Ting v. United States, 149 U.S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. “ Knauff v. Shaughnessy, 338 U.S. 537 (1950).

  • "Congress, having the right, as it may see fit, to expel aliens of a particular class, or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides." Fong Yue Ting v. U.S., 149 U.S. 698 (1893).

Juan Mann’s Top 20 U.S. Supreme Court Cases on Congressional Plenary Power Over Immigration Law Enforcement:

  • U.S. v. Jung Ah Lung, 124 U.S. 621 (1888). [Exclusion of Chinese laborer without certificate]

  • Chae Chan Ping v. U.S., 130 U.S. 581 (1889). [Exclusion of Chinese alien refused landing due to cancelled labor certificate]

  • Nishimura Ekiu v. United States, 142 U.S. 651 (1892). [Exclusion of Japanese pauper denied landing]

  • Fong Yue Ting v. U.S., 149 U.S. 698 (1893). [Deportation of three Chinese laborers without valid certificates was proper, not considered a "banishment."]

  • Lem Moon Sing v. U.S., 158 U.S. 538 (1895). [Exclusion of reentering Chinese merchant. No "right" to a court hearing, since policy in the hands of Congress and its appointed executive officers.]

  • Wong Wing v. U.S., 163 U.S. 228 (1896). [Detention and deportation of four illegal Chinese through "summary methods" was permissible, but a criminal sentence to hard labor was not found proper]

  • Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903). [Exclusion of Japanese pauper, known as "the Japanese immigrant case"]

  • U.S. ex rel. Turner v. Williams, 194 U.S. 279 (1904). [Deportation of U.K. anarchist John Turner, arrested in New York City and sent to detention on Ellis Island]

  • Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320 (1909). [Exclusion of aliens carrying "loathsome and dangerous contagious diseases"]

  • Bugajewitz v. Adams, 228 U.S. 585 (1913). [Deportation of an alien woman for prostitution]

  • Knauff v. Shaughnessy, 338 U.S. 537 (1950). [Exclusion of German "war bride" wife of U.S. citizen. Denial of entry permissible as the admission of aliens is not a right but a privilege.]

  • Harisiades v. Shaughnessy, 342 U.S. 580 (1952). [Supports the federal government's right to "terminate hospitality" in deporting Greek, Italian and Russian resident aliens for Communist Party membership]

  • Shaughnessy v. Mezei, 345 U.S. 206 (1953). [Exclusion of Hungarian on national security grounds. No Constitutional right to a hearing.]

  • Galvan v. Press, 347 U.S. 522 (1954). [Deportation of a Mexican resident alien for Communist Party membership]

  • Boutilier v. Immigration Service, 387 U.S. 118 (1967). [Exclusion of Canadian homosexual permissible under Congressional plenary power in enacting "psychopathic personality" ground in exclusion statute]

  • Kleindienst v. Mandel, 408 U.S. 753 (1972). [Exclusion of a "revolutionary Marxist" Trotskyist from Belgium]

  • Mathews v. Diaz, 426 U.S. 67 (1976). [Affirms Congressional authority to set conditions preventing resident aliens from receiving taxpayer-supported Medicare in case dealing with Cuban resident aliens]

  • Fiallo v. Bell, 430 U.S. 787 (1977). [Supports Congressional policymaking authority to exclude illegitimate children, in this case, aliens from the Dominican Republic, the French West Indies and Jamaica]

  • Reno v. Flores, 507 U.S. 292 (1993). [Procedures for detaining alien juveniles found sufficient under 5th Amendment due process. No automatic review by an immigration judge of the initial deportability and custody determinations is necessary]

  • Demore v. Kim, 538 US 510 (2003). [Immigration Act Section 236(c) provisions for mandatory detention of convicted criminal illegal aliens and resident aliens pending removal hearings found sufficient under due process and Congressional authority]

Juan Mann is an attorney and the proprietor of ( He writes a weekly column for ( and contributes to Michelle Malkin’s Immigration BLOG.

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