On this day in 1893, the Supreme Court decided Fong Yue Ting v. United States, 149 U. S. 698, which as Sabrina Karim points out, is worth noting.

The case asked the Court to review the implementation of the Chinese Exclusion Act and its 1892 successor (remember, the original expired after ten years).

The Court located the federal government’s power to deal with immigrants outside the Constitution, and in the inherent rights deriving from sovereignty. “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 justices said; all we need to do is check to see whether this inherent right has been constitutionally implemented.

And, the Court said, it had. Basically, Congress could do with immigrants as it pleased—could assign the power of deportation to the executive branch alone, or could admit the judicial branch’s involvement—but it was up to Congress to make this decision.

Though it was true that in their persons and property, immigrants enjoyed Fourteenth Amendment protections, those did not extend to a safeguard against deportation:

Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the Government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws, and therefore remain subject to the power of Congress to expel them or to order them to be removed and deported from the country whenever, in its judgment, their removal is necessary or expedient for the public interest.

Now, the 1892 act required Chinese in the U.S. to register themselves and to carry papers with them. It thus created the presumption of illegality for anyone of Chinese extraction. The Court was fine with this, and noted that Congress has, so far as the justices could see, exercised forbearance.

Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country. But Congress has not undertaken to do this.

Justice Brewer dissented, and couldn’t resist a (weak) joke:

The Constitution has no extraterritorial effect, and those who have not come lawfully within our territory cannot claim any protection from its provisions; and it may be that the National Government, having full control of all matters relating to other nations, has the power to build, as it were, a Chinese wall around our borders, and absolutely forbid aliens to enter. But the Constitution has potency everywhere within the limits of our territory, and the powers which the National Government may exercise within such limits are those, and only those, given to it by that instrument. Now, the power to remove resident aliens is, confessedly, not expressed.

He also noted that the law was at odds with the 1868 Burlingame Treaty between the U.S. and China, which recognized “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 for purposes of curiosity, of trade, or as permanent residents.”

But the majority of the Court anticipated this objection, saying treaties, while “supreme,” were also merely “promissory,” and subject to the whim of Congress.