ТОП просматриваемых книг сайта:
Deportation. Torrie Hester
Читать онлайн.Название Deportation
Год выпуска 0
isbn 9780812294026
Автор произведения Torrie Hester
Жанр Юриспруденция, право
Издательство Ingram
Part of the plaintiffs’ argument in Fong Yue Ting turned on the claim that if the government did possess the power of deportation, then it represented a punishment, but here, too, the Court disagreed. Deportation under the Geary Act, the Court determined, “is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country.”29 Because deportation was not a punishment, the Court reasoned, a deportee was not “deprived of life, liberty, or property without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.”30
The Supreme Court further clarified the distinction between punishment and deportation by finding that removing or expelling a citizen represented a punishment, but that the removal of a noncitizen did not. As the Court majority asserted, “the order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment.”31 Instead, as the justices understood it, deportation “is but a method of enforcing the return to his own country of an alien who does not comply with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.”32
Not all the justices agreed with the Court majority, and in the dissenting opinions of Melville Fuller, David Brewer, and Stephen Field were different schools of thought on the range of legal questions posed in Fong Yue Ting. When the Court majority upheld the authority of the political branches of the federal government to deport by linking it to national protection, justices invoked a category of power in U.S. law known as the plenary power. Under the plenary power, as legal scholars Thomas Alexander Aleinikoff, David A. Martin, and Hiroshi Motomura write, “the judicial branch … defer[s] to executive and legislative branch decision making.”33 The plenary power doctrine limited the right of courts to review the powers of the federal legislative and executive branches. Justices Fuller, Brewer, and Field worried that what the majority proposed in its framing and interpretation of the plenary power was so radical that it cut at some of the most basic constitutional protections. In Fong Yue Ting, the dissenting justices feared that expansion of the plenary power would give rise to a despotic power.34
The dissenting justices questioned the majority’s insistence that deportation and exclusion represented the same unlimited power created by sovereignty and, instead, found this logic to violate the Constitution. The key for Field was that the government’s authority to exclude aliens did not give it the authority to deal with a person already on U.S. soil. “[W]hile the general government is invested,” Field wrote, “in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, or of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion.”35 As Brewer saw it, in building the power to deport based on the rights inhered by sovereignty, the government was effectively wiping away robust constitutional rights on the grounds that it was protecting the country. Deportation, Brewer said, “can be exercised only in subordination to the limitations and restrictions imposed by the Constitution.”36 Brewer’s dissent further questioned the government’s lack of constitutional limits. “It is said,” Brewer wrote, “that the power here asserted [of deportation] is inherent in sovereignty.” But this doctrine is, he warned, “one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced?” Should those limits be set by Congress or the Court or international law? “The governments of other nations have elastic powers,” but, Brewer declared, “ours are fixed and bounded by a written Constitution.”37
The dissenting justices also insisted that if the government did have the power to deport, then it constituted a punishment. Brewer wrote that under the Geary Act a person who did not secure a certificate of residence might be deported, and this consequence for not acting was a punishment. Deportation, Brewer asserted, “involves first an arrest, a deprival of liberty; and second, a removal from home, from family, from business, from property.”38 “Everyone knows,” he continued, “that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel.”39 As Field saw it, the deportation of long-term residents like Fong Yue Ting represented a “punishment … beyond all reason in its severity. It is out of all proportion to the alleged offense. It is cruel and unusual. As to its cruelty, nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all relations of friendship, family, and business there contracted.”40 Field here seemed to oppose the collapsing of the legal categories of long-term and short-term immigrants. Long-term residents, like citizens, should not be deported without the constitutional protections relating to punishments. Brewer and Field focused on the experience of a potential deportee and argued that since deportation felt like a punishment, it should be processed as one. The dissenting justices did not see the clear line between protection and punishment drawn by the Court’s majority.
Justice Field argued against what he understood as the weight of the decision—that it established a separate tier of law that treated immigrants differently from citizens. To make his point, he raised two questions: “If a foreigner who resides in the country by its consent commits a public offense, is he subject to be cut down, maltreated, imprisoned, or put to death by violence, without accusation made, trial had, and judgment of an established tribunal following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his case, what rule is it to be?” Field warned that if the government constructed a second tier of law, it would be easy to put aside the rights and liberties valued in the American system of government. “If one rule may lawfully be laid aside in this case, another rule may also be laid aside, and all rules may be discarded,” he wrote. “In such instances, a rule of evidence may be set aside in one case, a rule of pleading in another; the testimony of eyewitnesses may be rejected, and hearsay adopted; or no evidence at all may be received, but simply an inspection of the accused.”41
The dissenting opinions brought into relief just what the Supreme Court upheld in Fong Yue Ting. The minority thought deportation should be classified as punishment; they worried about the expansions in the plenary power and the seeming violations of constitutional protections. The majority opinion understood the legal questions posed in the case quite differently. They upheld deportation, defining it as something as protective of national sovereignty, rooted in the government’s power of immigrant exclusion. The Court’s decision also stated that deportations were guided by the U.S. Constitution, and that the proceedings set up under the laws of Chinese exclusion were constitutional.
After Fong Yue Ting, administrative officials set out to enforce the meaning of deportability that the Supreme Court articulated. One of the first challenges federal officials in the post–Fong Yue Ting world had to face was the prospect of deporting perhaps the 110,000 people who had refused to register for certificates of residence. The government did not have the budget for deportations on this scale. Nor did law clearly define who was in charge of deporting this number of people. Throughout the West, a chaotic mix of local and state officials as well as private citizens began arresting people.42 Six months after the Fong Yue Ting decision, on November 3, 1893, Congress solved some of the immediate enforcement challenges