The United States of America is on the verge of a government shutdown — and there’s a very simple explanation for why this is the case. Donald Trump is a racist who cares more about keeping non-white immigrants out of the country than he does about keeping basic government services operational.
The primary sticking point preventing a spending bill from being signed into law is immigration. Democrats want to protect the approximately 690,000 immigrants who benefit from the Deferred Action for Childhood Arrivals (DACA) program, which Trump plans to start winding down in March. Republicans, meanwhile, are a bit all over the map.
Some, like Sens. Tom Cotton (R-AR) and David Perdue (R-GA), are actively defending Trump while also acting as cheerleaders to encourage the president to maintain a hard line. Others, like Sens. Lindsey Graham (R-SC), Jeff Flake (R-AZ), and Cory Gardner (R-CO), are negotiating with Democrats to address their concerns about DACA. Still others, including Senate Majority Leader Mitch McConnell (R-KY), appear to be trapped in the middle. McConnell said on Wednesday that he hasn’t brought the bipartisan compromise negotiated by Graham, Flake, and Gardner to the floor because he’s “looking for something that President Trump supports” and Trump hasn’t communicated what, exactly, that is.
But Trump has been clear about one thing. When Graham and Sen. Dick Durbin (D-IL) presented the bipartisan deal to Trump — a deal that combines small cuts to legal immigration, money to fund part of Trump’s “wall” on the Mexican border, and legal status for undocumented immigrants who came to the United States as children — Trump flipped out. The deal, Trump complained, would permit too many people from “shithole countries” to remain in the United States. “Why do we need more Haitians?” the president demanded. “Take them out.”
Generally, discrimination on the basis of national origin is not permitted by the Constitution — the government cannot single out a group of people for inferior treatment because they are Haitian. Yet Trump has admitted to doing just that.
In addition to winding down DACA, the Trump administration also plans to withdraw temporary protected status from approximately 59,000 Haitians permitted to live in the United States after a massive earthquake ravaged their home nation in 2010. Trump’s comments suggest that this is happening not because it is in the interest of the United States, but because the man at the apex of the Trump administration disapproves of Haitians. His comments also suggest that many other aspects of Trump’s immigration policies are rooted in hate.
Under ordinary circumstances, such explicitly racist sentiments from a sitting president would have profound legal consequences. When the President of the United States admits that his motivation for a major policy shift is constitutionally prohibited bigotry, courts typically look upon that policy shift with great skepticism — at least when the policy is something the executive branch has the unilateral authority to implement.
But in this case, Trump does have some legal precedents on his side. A 129-year-old Supreme Court case, involving a law entitled the “Chinese Exclusion Act,” gives the government sweeping authority to exclude immigrants from the United States — often even if doing so would violate the Constitution. Because of this doctrine, the courts are much more likely to uphold Trump’s plans to keep certain immigrants out of the country, even if Trump announces these plans while standing in front of a burning cross.
The worst justice
The “plenary power doctrine,” which calls for this awesome degree of deference to federal immigration policymakers, began with the Supreme Court’s decision in Chae Chan Ping v. United States, a case commonly referred to by a different name — the Chinese Exclusion Case.
Chae Chan Ping involved an escalating series of restrictions on Chinese immigrants enacted by Congress over the course of several years. In the end, Congress banned Chinese immigrants who had lived in the United States lawfully, and who had even received a certificate from the federal government permitting them to return to the country from a trip abroad, from reentering the United States.
Congress enacted these increasingly draconian bans on Chinese immigrants in large part because of racist views harbored by many white Californians. In a 1877 message to Congress, a committee of seven California state senators complained that immigrants from China “seem to be antediluvian men renewed” with a “code of morals,” “forms of worship,” and “maxims of life” that “are those of remotest antiquity.”
The Chinese, the senators continued, “are impregnable to all the influences of our Anglo-Saxon life,” and there “can be no hope that any contact with our people, however long continued, will ever conform them to our institutions, enable them to comprehend or appreciate our form of government, or to assume the duties or discharge the functions of citizens.”
Justice Stephen Johnson Field echoed these concerns in a passage from Chae Chan Ping explaining why America took such a harsh posture against Chinese immigrants. “The presence of Chinese laborers had a baneful effect upon the material interests of the State, and upon public morals” Field wrote, adding that “their immigration was in numbers approaching the character of an Oriental invasion and was a menace to our civilization.”
Field, it is worth noting, was one of the most odious individuals ever to serve on the Supreme Court. He joined the Supreme Court’s pro-segregation decision in Plessy v. Ferguson. He also authored an opinion permitting former Confederate officials to practice law in federal court — then he touted this opinion to Southern white voters during a dark horse bid for president in 1880.
Yet, racist as he was, the cause of Field’s life was hobbling the government’s ability to enact business and other economic regulation. He railed against bans on price gouging and labeled a modest income tax on upper income earners an “assault upon capital” which “will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness.”
Field combined all of the worst traits of Donald Trump with all the worst traits of Paul Ryan. Belligerent and racist. A tool of robber barons. And his opinion in Chae Chan Ping still stands as one of his worst decisions.
The core of Chae Chan Ping‘s holding is that the federal government is free to exclude foreign nationals from the United States, even if doing so would ordinarily violate the Constitution. If “the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security,” Field wrote, “their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”
“The exclusion of paupers, criminals and persons afflicted with incurable diseases,” Field continued, “is only an application of the same power to particular classes of persons, whose presence is deemed injurious or a source of danger to the country” as the power Congress exercised when it banned Chinese nationals.
A legal turning point
In fairness, a lot has happened since Field first laid out a broad plenary power doctrine in 1889. Many scholars believe that the doctrine fell out of favor in recent decades. Others argue that the Supreme Court has worked around it by interpreting anti-immigrant statutes narrowly.
Moreover, as University of Michigan law professor Margo Schlanger noted last year, when Trump’s Muslim Ban seemed headed towards a collision course with the Supreme Court, even the Trump administration’s own lawyers did not argue that the Muslim Ban is constitutional because Chae Chan Ping gives Trump an unquestionable authority to ban Muslim foreign nationals.
Yet there is still good reason to fear that the Supreme Court would let Trump’s racist comments slide, even in a lawsuit brought by a Haitian immigrant injured by Trump’s racism. As University of Texas law professor Steve Vladeck notes, the Muslim Ban cases presented a unique issue because the Constitution’s protections against religious discrimination “have seldom, if ever, shown up in the Supreme Court’s plenary power jurisprudence.”
Discrimination against Haitians because of their country of origin, by contrast, fits within the core of the plenary power doctrine. Indeed, there are few differences between Chae Chan Ping, which involved a racist ban on Chinese immigrants, and a potential future case involving a racist attack on Haitian immigrants.
Current law, in other words, suggests that Trump will be able to get away with his racist policymaking so long as he limits it to the immigration context. The open question is whether the modern Supreme Court — where conservatives hold the majority but at least two of them are more moderate than Justice Field — are still willing to tolerate such explicit racism from a high government official.