Stan. L. Rev.: The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone

The Chinese Exclusion Cases and Policing in the Fourth Amendment–Free Zone by Trillium Chang (2021 Student Essay Competition Winner), 73 Stan. L. Rev. (Sept. 2021):

In the United States, there are two types of borders. The first type is the one politicians talk and debate about: tall fences surrounded by barbed wire jutting out of the dirt. The second type is hidden in plain sight. It extends 100 miles inland from all sea and land borders and covers two-thirds of the U.S. population, from New York, to Chicago, to San Francisco. Citizens and noncitizens alike in this 100-mile zone can be subjected to constant and sweeping policing by border officials.

This second border has silently eroded constitutional protections for most people in this country. In this zone, which covers the majority of the United States, over 200 million individuals are constantly susceptible to investigatory detention and warrantless search by immigration officials. This extra-constitutional world was made possible by the Plenary Power Doctrine, the foundation of U.S. immigration law. That doctrine confers absolute federal power over immigration on Congress and the Executive branch. Over the past century, the Plenary Power Doctrine has elevated immigration law to an untouchable pedestal that is subject to little judicial restraint. Although this doctrine is now taken for granted, few realize that it is rooted in a controversial past: the Chinese Exclusion Cases.

The Supreme Court first developed the Plenary Power Doctrine in Chae Chan Ping [Chae Chan Ping v. United States, 130 U.S. 581 (1889)] and Fong Yue Ping [Fong Yue Ting v. United States, 149 U.S. 698 (1893)] when upholding the exclusion of all Chinese laborers.

And though those cases are now thought of as a stain on U.S. history, their lasting ulterior effects form the backbone of the American immigration system as we know it today. In the shadow of this doctrine, immigration officials are now empowered to conduct warrantless searches deep into the interior of the country.

This Essay demonstrates the Chinese Exclusion Cases’ ulterior effects on Fourth Amendment jurisprudence. Part I provides a background and critique of the Chinese Exclusion Cases and the Plenary Power Doctrine. Part II then explores how the Plenary Power Doctrine took on a life of its own, forcing citizens and noncitizens alike to live in a Fourth Amendment–free zone.