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

[Also by Juan Mann on the SPP:

The ongoing scandal of the

Security and Prosperity Partnership of North America

[SPP] continues unabated despite the recent

demand for full disclosure
by Congressman Tom

Behind-closed-doors "working
of unelected bureaucrats from


and the

United States
have been hammering away at the

of these three countries—apparently
seeking to

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

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


Communist party

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

admission, detention and deportation

foreign nationals
. And, of course, this power is
also an inherent attribute of

American sovereignty.

The case law citations of these
"old chestnuts"
for venerated classic cases) appear in
some of the most recent Supreme Court cases upholding


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

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

  • "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

  • "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

    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

    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. “

    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

    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

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

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

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

  • 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

  • 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.]

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

  • 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

  • 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

Juan Mann [email
him] is an attorney and the proprietor of
He writes a weekly column for
contributes to Michelle Malkin`s

Immigration BLOG