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The Chinese Exclusion Acts Asian Americans and the Law Dr. Steiner.

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1 The Chinese Exclusion Acts Asian Americans and the Law Dr. Steiner

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3 Anson Burlingame

4 Burlingame Treaty Art. V (1868) The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for purposes of curiosity, of trade, or as permanent residents.

5 Burlingame Treaty Art. VI (1868) Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. And, reciprocally, Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation.

6 Burlingame Treaty Art. VI (1868) But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.

7 Toward Exclusion California’s record of discriminatory legislation Court cases such as Chy Lung v. Freeman (1875) Page Act of 1875

8 Chy Lung v. Freeman (1875) The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.

9 Ho Ah Kow v. Nunan (1879) We are aware of the general feeling-- amounting to positive hostility-- prevailing in California against the Chinese, which would prevent their further immigration hither and expel from the state those already here.... We feel the force and importance of these considerations; but the remedy for the apprehended evil is to be sought from the general government, where, except in certain special cases, all power over the subject lies.

10 Exclusion and the “California Thesis” Some historians say that California was responsible for exclusion –Frontier society –Racially prejudiced white workers –Economic conditions –Opportunistic politicians –National party politics meant federal government yielded to pressure from California –Hune, Politics of Chinese Exclusion

11 National Racist Consensus Thesis While California was the spearhead for the movement for exclusion, there was a national consensus based upon widely held stereotypes of Chinese National labor organizations played a particularly significant role

12 National Politicians Thesis Andrew Gyory, Closing the Gate: Race, Politics, and the Chinese Exclusion Act (1998) The single most important force behind the Chinese Exclusion Act was national politicians of both parties who seized, transformed, and manipulated the issue of Chinese immigration in the quest for votes.... Politicians—not California, not workers, and not national racist imagery—ultimately supplied the agency for Chinese exclusion.

13 Naturalization Act of 1870 On July 4, 1870 Senator Charles Sumner tried to strike the word “white” from the naturalization law.

14 Charles Sumner (July 4, 1870) It is “all men” and not a race or color that are placed under the protection of the Declaration [of Independence, which said famously that “all men are created equal”], and such was the voice of our fathers on the fourth day of July, 1776…. Now, Sir, what better thing can you do on this anniversary than to expunge from the statutes that unworthy limitation that dishonors and defiles the original Declaration? … The word “white” wherever it occurs as a limitation of rights, must disappear. Only in this way can you be consistent with the Declaration.

15 Democratic Party Platform of 1876 Reform is necessary to correct the omissions of a Republican Congress and the errors of our treaties and our diplomacy, which has... exposed our brethren of the Pacific coast to the incursions of a race not sprung from the same great parent stock, and in fact now by law denied citizenship through naturalization as being unaccustomed to the traditions of a progressive civilization, one exercised in liberty under equal laws;

16 Democratic Party Platform of 1876 and we denounce the policy which thus discards the liberty-loving German and tolerates the revival of the coolie-trade in Mongolian women for immoral purposes, and Mongolian men held to perform servile labor contracts, and demand such modification of the treaty with the Chinese Empire, or such legislation within constitutional limitations, as shall prevent further importation or immigration of the Mongolian race.

17 Republican Party Platform 1876 It is the immediate duty of congress fully to investigate the effects of the immigration and importation of Mongolians on the moral and material interests of the country.

18 James Blaine Senator, Maine We have this day to choose…whether our legislation shall be in the interest of the American free laborer or the servile laborer from China…You cannot work a man who must have beef and bread and would prefer beer, alongside a man who can live on rice. It cannot be done. –On Fifteen Passenger Bill, 1879

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20 Fifteen Passenger Bill (1879) No master of a vessel would be permitted to bring more than fifteen Chinese passengers into the United States on any one voyage Upon arrival, ship masters would be required to present sworn list of all Chinese passengers Violators could be fined $100 for each passenger and six months in prison

21 Fifteen Passenger Bill (1879) Passed House on January 28, 1879 –155 in favor; 72 opposed –Democrats voted 104-16 in favor –Republicans voted 51-56 against Passed Senate on February 15, 1879 –39 in favor; 27 opposed; 9 absent –Democrats 25-8 in favor –Republicans voted 14-19 against

22 Rutherford B. Hayes Diary (1879) I am satisfied the present Chinese labor invasion (it is not any proper sense immigration--women and children do not come) is pernicious and should be discouraged. Our experience in dealing with weaker races--the Negroes and Indians, for example--is not encouraging. We shall oppress the Chinamen, and their presence will make hoodlums or vagabonds of their oppressors.

23 Rutherford B. Hayes Diary I therefore would consider with favor measures to discourage the Chinese from coming to our shores. But I suspect that this bill is inconsistent with our treaty obligations.... If it violates the national faith I must decline to approve it.

24 Hayes’s Veto Message (March 1, 1879) Up to this time our uncovenanted hospitality to immigration, our fearless liberality of citizenship, our equal and comprehensive justice to all inhabitants, whether they abjured their foreign nationality or not, our civil freedom, and our religious toleration had made all comers welcome, and under these protections the Chinese in considerable numbers had made their lodgment upon our soil.

25 Hayes’s Veto Message I regard the very grave discontents of the people of the Pacific States with the present working of the Chinese immigration, and their still graver apprehensions therefrom in the future, as deserving the most serious attention of the people of the whole country and a solicitous interest on the part of Congress and the Executive. If this were not my own judgment, the passage of this bill by both Houses of Congress would impress upon me the seriousness of the situation, when a majority of the representatives of the people of the whole country had thought fit to justify so serious a measure of relief.

26 Hayes’s Veto Message The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body. A denunciation of a treaty by any government is confessedly justifiable only upon some reason both of the highest justice and of the highest necessity. The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body. A denunciation of a treaty by any government is confessedly justifiable only upon some reason both of the highest justice and of the highest necessity.

27 Hayes’s Veto Message I am convinced that, whatever urgency might in any quarter or by any interest be supposed to require an instant suppression of further immigration from China, no reasons can require the immediate withdrawal of our treaty protection of the Chinese already in this country, and no circumstances can tolerate an exposure of our citizens in China, merchants or missionaries, to the consequences of so sudden an abrogation of their treaty protection. I am convinced that, whatever urgency might in any quarter or by any interest be supposed to require an instant suppression of further immigration from China, no reasons can require the immediate withdrawal of our treaty protection of the Chinese already in this country, and no circumstances can tolerate an exposure of our citizens in China, merchants or missionaries, to the consequences of so sudden an abrogation of their treaty protection.

28 Treaty Regulating Immigration from China (Nov. 17, 1880) Whereas the Government of the United States, because of the constantly increasing immigration of Chinese laborers to the territory of the United States, and the embarrassments consequent upon such immigration, now desires to negotiate a modification of the existing Treaties which shall not be in direct contravention of their spirit:

29 Treaty Regulating Immigration from China, Art. I (Nov. 17, 1880) Whenever in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country or of any locality within the territory thereof, the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it.

30 Treaty Regulating Immigration from China, Art. I (Nov. 17, 1880) The limitation or suspension shall be reasonable and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations.

31 Treaty Regulating Immigration from China, Art. II (Nov. 17, 1880) Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and subjects of the most favored nation.

32 Treaty Regulating Immigration from China, Art. II (Nov. 17, 1880) If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measures for their protection and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty...

33 First Exclusion Act of 1882 Twenty-year exclusion period Vetoed by President Chester A. Arthur –Convinced of necessity of legislation –But twenty-year term violated treaty

34 “It would be unreasonable to destroy it, and would reflect upon the honor of the country.”

35 Harper’s Weekly, April 15, 1882, In a temperate and excellent message the President has vetoed the Chinese bill. He states in detail the existing treaty relations between the countries, and the express understanding between the Commissioners upon both sides in the late negotiations. It was stipulated that the free immigration of Chinese should not be prohibited, and that any regulation of their coming should be reasonable. But an exclusion of twenty years is a practical prohibition, and therefore unreasonable. The President adopts this view, and regarding the twenty years clause as a breach of the national faith, he returns the bill.

36 Chinese Exclusion Act of 1882 WHEREAS, in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof: Therefore,...

37 Chinese Exclusion Act of 1882 Be it enacted, That from and after the expiration of ninety days next after the passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States be,... suspended; and during such suspension 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.

38 Chinese Exclusion Act of 1882 That the master of any vessel who shall knowingly bring within the United States on such vessel, and land or permit to be landed, any Chinese laborer, from any foreign port or place, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than five hundred dollars for each and every such Chinese laborer so brought, and may be also imprisoned for a term not exceeding one year.

39 Chinese Exclusion Act of 1882 That any Chinese laborer mentioned in section four of this act being in the United States, and desiring to depart from the United States by land, shall have the right to demand and receive, free of charge or cost, a certificate of identification...and it is hereby made the duty of the collector of customs of the district next adjoining the foreign country to which said Chinese laborer desires to go to issue such certificate, free of charge or cost, upon application by such Chinese laborer, and to enter the same upon registry-books to be kept by him for the purpose, as provided for in section four of this act.

40 Chinese Exclusion Act of 1882 [E]very Chinese person other than a laborer who may be entitled by said treaty and this act to come within the United States, and who shall be about to come to the United States, shall be identified as so entitled by the Chinese Government in each case, such identity to be evidenced by a certificate issued under the authority of said government, which certificate... stating such right to come, and which certificate shall state the name, title, or official rank, if any, the age, height, and all physical peculiarities former and present occupation or profession and place of residence in China of the person to whom the certificate is issued and that such person is entitled conformably to the treaty in this act mentioned to come within the United States...

41 Chinese Exclusion Act of 1882 That the words “Chinese laborers,” whenever used in this act, shall be construed to mean both skilled and unskilled laborers and Chinese employed in mining.

42 Exclusion Act 1882 In the opening sentence, Congress announced the purpose of the Exclusion Act. What is its purpose? What “localities” was Congress referring to? The Act excludes “Chinese laborers”? What is meant by “Chinese”? Does it apply to all ethnic Chinese or is it limited to subjects of the Chinese Empire? Which Chinese laborers are exempted by the Act? How would such laborers prove their exemption? Who else could enter the United States from China? How would those persons prove they could enter? Who is a laborer under the Act under section 15?

43 Effect of Exclusion Act In 1882, before the Act went into effect, 39,000 Chinese came to the United States In 1887, Chinese immigration totaled 10! While American population doubled between 1880 and 1920, the population of those of Chinese descent declined by one- third. –Chin, Chae Chan Pong and Fong Yue Ting

44 Act of July 5, 1884, ch. 220, 23 Stat. 115 Section fifteen of said act is hereby amended so as to read as follows: That the provisions of this act shall apply to all subjects of China and Chinese, whether subjects of China or any other foreign power; and the words Chinese laborers, wherever used in this Act shall be construed to mean both skilled and unskilled laborers and Chinese employed in mining.

45 Act of July 5, 1884, ch. 220, 23 Stat. 115 The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborers shall seek to re-enter, and said certificates shall be the only evidence permissible to establish his right of re-entry...

46 Chew Heong v. United States, 112 U.S. 536 (1884) The entire argument in support of the judgment below proceeds upon the erroneous assumption that congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the act of 1882, including those who, like the plaintiff in error, were here when the last treaty was concluded, but were absent at the date of the passage of that act.... [T]he courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature.

47 Lorenzo Sawyer to Matthew P. Deady, Dec. 22, 1884 [I]t is some consolation, after all the lying, abuse, threatening of impeachment etc. as to our construction of the Chinese restriction act, and the grand glorification of brother Field for coming out here and so easily, promptly and thoroughly sitting down on us and setting us right on that subject to find that we are not so widely out of our senses after all.

48 Act of Oct. 1, 1888, 25 Stat. 504, ch. 1064 That from and after the passage of this act, it shall be unlawful for any chinese laborers who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States and who shall have departed, or shall depart, therefrom, and shall not have returned before the passage of this act, to return to, or remain in, the United States.

49 Act of Oct. 1, 1888, 25 Stat. 504, ch. 1064 Sec. 2 That no certificate of identity provided for in the fourth and fifth sections of the act to which this is a supplement shall hereafter be issued; and every certificate heretofore issued in pursuance thereof, is hereby declared void and of no effect, and the chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States.

50 Effect of 1888 Amendment Between 20,000 and 30,000 Chinese who had been living in the United States and had relied upon the statute and obtained a certificate and returned to China, were stranded there.

51 Chae Chan Ping v. United States (1889) The opinion by Justice Field provides his explanation of why the United States retreated from its “strong expressions of friendship and good will” with China. What happened according to Field?

52 Chae Chan Ping v. United States Whatever modifications have since been made to these general provisions have been caused by a well-founded apprehension from the experience of years that a limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific coast, and possibly to the preservation of our civilization there.

53 Chae Chan Ping v. United States The differences of race added greatly to the difficulties of the situation. Notwithstanding the favorable provisions of the new articles of the treaty of 1868, by which all the privileges, immunities, and exemptions were extended to subjects of China in the United States which were accorded to citizens or subjects of the most favored nation, they remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country.

54 Chae Chan Ping v. United States It seemed impossible for them to assimilate with our people, or to make any change in their habits or modes of living. As they grew in numbers each year the people of the coast saw, or believed they saw, in the facility of immigration, and in the crowded millions of China, where population presses upon the means of subsistence, great danger that at no distant day that portion of our country would be overrun by them, unless prompt action was taken to restrict their immigration.

55 Chae Chan Ping v. United States According to Field, what caused the “irritation” between the Chinese in California and “our people”? What’s the significance that Field uses the term “our people” to distinguish those other than the Chinese?

56 Chae Chan Ping v. United States The competition steadily increased as the laborers came in crowds on each steamer that arrived from China, or Hong Kong, an adjacent English port. They were generally industrious and frugal. Not being accompanied by families, except in rare instances, their expenses were small; and they were content with the simplest fare, such as would not suffice for our laborers and artisans. The competition between them and our people was for this reason altogether in their favor, and the consequent irritation, proportionately deep and bitter, was followed, in many cases, by open conflicts, to the great disturbance of the public peace.

57 Chae Chan Ping v. United States In December, 1878, the convention which framed the present constitution of California, …[petitioned congress], that the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions; and praying congress to take measures to prevent their further immigration.

58 Chae Chan Ping v. United States According to Field, what necessitated the use of certificates? The enforcement of this act with respect to laborers who were in the United States on November 17, 1880, was attended with great embarrassment, from the suspicious nature, in many instances, of the testimony offered to establish the residence of the parties, arising from the loose notions entertained by the witnesses of the obligation of an oath.

59 Chae Chan Ping v. United States How does Field answer the argument that the exclusion laws are invalid because they conflict with treaty obligations?

60 Chae Chan Ping v. United States The treaties were of no greater legal obligation than the act of congress. By the constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other.

61 Chae Chan Ping v. United States The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts. This court is not a censor of the morals of other departments of the government; it is not invested with any authority to pass judgment upon the motives of their conduct. When once it is established that congress possesses the power to pass an act, our province ends with its construction and its application to cases as they are presented for determination.

62 Chae Chan Ping v. United States (1889) What powers are given to the national government that would permit the exclusion acts?

63 Chae Chan Ping v. United States While under our constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.

64 Geary Act 1892 An act to prohibit the coming of Chinese persons into the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act.

65 Geary Act 1892 That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.

66 Geary Act 1892 And it shall be the duty of all Chinese laborers within the limits of the United States,..., to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence, and any Chinese laborer, within the limits of the United States, who shall neglect, fail, or refuse to comply with the provisions of this act, or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested, by any United States [official], and taken before a United States judge, whose duty it shall be to order that he be deported from the United States as hereinbefore provided,

67 Geary Act unless he shall establish clearly to the satisfaction of said judge, that by reason of accident, sickness or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if upon the hearing, it shall appear that he is so entitled to a certificate, it shall be granted upon his paying the cost.

68 Geary Act 1892 Historian Gabriel J. Chin has argued that the 1882 act admitted all except those it specifically excluded but the 1892 act excluded all but those it specifically admitted. What proof exists in the language of the statute that supports Chin’s argument? Under section three, what presumption could be made about any Chinese arrested in the United States for violating the act? Under section 6, what duty is placed on all Chinese residing in the United States? What if a Chinese laborer entitled to a certificate failed to obtain one? Who could testify on behalf of someone arrested under the Act?

69 To amend an act entitled An act to prohibit the coming of Chinese persons into the United States (1893) The words “laborer” or “laborers”... Shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation.

70 To amend an act entitled An act to prohibit the coming of Chinese persons into the United States (1893)

71 Senator William M. Stewart (Nevada), April 23, 1892 There was a time when there was great diversity of opinion on the question of Chinese immigration to this country, but I think there is practically none now. The American people are now convinced that the Chinese can not be incorporated among our citizens, cannot be amalgamated, can not be absorbed, but that they will remain a distinct element.

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74 Fong Yue Ting v. United States (1893) Who are the petitioners? Where does the power to exclude foreigners derive? Does Congress have the power to require the registration of Chinese residing in the United States?

75 Fong Yue Ting v. United States (1893) The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare, the question now before the court is whether the manner in which congress has exercised this right in sections 6 and 7 of the act of 1892 is consistent with the constitution.

76 Fong Yue Ting v. United States According to the court, is it permissible in no-certificate proceedings that the burden of proof isn’t on the government but on the Chinese laborer or that testimony must come from a “white witness”?

77 Fong Yue Ting v. United States The provision which puts the burden of proof upon him of rebutting the presumption arising from his having no certificate, as well as the requirement of proof ‘by at least one credible white witness that he was a resident of the United States at the time of the passage of this act,’ is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government.

78 Fong Yue Ting v. United States Justice Brewer’s dissent makes what three points? What is his specific critique of the use of “sovereignty” in the majority opinion? Are Chinese involved in deportation proceedings entitled to due process, according to Justice Brewer?

79 Fong Yue Ting v. United States Brewer, dissenting. In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, “Why do they send missionaries here?”

80 Fong Yue Ting v. United States Justice Field was the author of Chae Chan Ping, but dissents here. What’s the difference in the two cases for Field?

81 Fong Yue Ting v. United States Justice Fuller attacks the deference of the majority opinion toward the Geary Act. What is Fuller’s essential point about the supreme court’s duty in such a case?

82 Gabriel J. Chin, Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power In Chae Chan Ping, the Court held that a returning resident noncitizen could be excluded if Congress determined his race was undesirable—or for any other reason. In Fong Yue Ting, the Court held that these noncitizens could be deported because of their race—or for any other reason. … The message from these cases, then, is that where the status of immigrants is concerned, almost anything goes. Congressional power to determine who may come and stay, and who may not, is virtually unrestricted.


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