“It shall not be lawful for any Chinese laborer to come, or having so come after the expiration of said ninety days, to remain within the United States.”
— Chinese Exclusion Act
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
— Donald Trump
This past week, businessman-turned-television celebrity-turned presidential candidate Donald Trump dominated headlines when he delivered a speech, and then a Tweet, that proposed to ban all adherents of Islam, regardless of their national origin, from entering the United States. The proposal drew near universal condemnation from officials and politicians of both major parties, several major religions and numerous newspaper editorial boards. Polls showed little, if any, impact on Trump’s standing in the presidential primary.
Trump’s proposal is not, however, the first instance in the nation’s history of exclusionary immigration policies. While discussions of such policies have often invoked Godwin’s Law, or focused on Japanese internment camps during World War II, the closest comparison may be the Chinese Exclusion Act of 1882.
Chinese immigration to the United States had skyrocketed during the railroad boom. As that boom began to wind down and Chinese immigration expanded, Congress eventually acted to not only curtail Chinese immigration to the United States, but to ban it all together. The first attempt to do so came in 1879. That bill was vetoed by Delaware’s own Rutherford B. Hayes, who claimed that it violated treaty obligations between the United States and China.
Congress attempted again in 1882, passing a bill that would have banned any Chinese immigration for 20 years, and again the bill was vetoed, this time by President Chester Arthur. Undeterred, Congress passed a similar bill later that year that shortened the ban to 10 years. The 1882 act was mild in comparison to what would come later. It banned only “Chinese laborers” and permitted Chinese workers already in the United States to obtain documentation that would allow them to come and go from the nation’s borders.
In 1884, Congress broadened the act. It now applied not only to laborers, but to any person of Chinese descent, regardless of whether the person was a Chinese citizen or not. Simply having Chinese lineage was enough to bar a person from entry to the U.S. Four years later, Congress acted again and this time revoked all “certificates of return,” barring any Chinese worker from re-entering the United States, even if they had been present when the 1882 act became law. This included an estimated 20,000 Chinese workers who had left the United States with certificates of return, thinking they could rejoin their families in the U.S. This provision, known as the Scott Act, was found to violate treaty obligations, but was upheld by the U.S. Supreme Court.
These provisions were set to expire in 1892, but before they could, Congress passed the Geary Act, which extended the Chinese ban for another decade. Although we often conjure images of Nazi Germany when we talk about asking to see someone’s “papers”, the Geary Act required Chinese persons in the U.S. to carry a “certificate of residence” at all times and created a presumption of deportation if the papers could not be produced. The only way to overcome that presumption was through the testimony of “at least one credible white witness.” That’s not some administrative policy either — those are the exact words of an act of Congress passed some 27 years after the end of the Civil War.
The Geary Act was set to expire in 1902, but Congress first extended it indefinitely and then, two years later, made it permanent. It wasn’t until the Hart-Celler Act of 1965 that Congress eliminated immigration laws based on national origin. In 2011 and 2012, the Senate and House of Representatives passed resolutions in which they unanimously condemned the Chinese exclusion laws and called on future Congresses to protect the civil rights of all persons.
Unlike Trump’s proposal, the Chinese Exclusion Acts did not arise out of fears about terrorism or war and focused on ethnicity, not religion. Indeed, the religious aspect of the ban is what led to rebukes from entities as different as Jewish groups and the Mormon church. But the Chinese Exclusionary Acts show that federal courts give great deference to Congress on matters of immigration and that no result is certain in such a lawsuit.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.