In October 1888 Chae Chan Ping, a Chinese national, was detained on the steamship Belgic in the port of San Francisco. The detainee, who had lived in the US for 12 years, was trying to re-enter the US after a trip back to China. He had a certificate allowing him to return. However, during his absence, an Act of Congress had introduced new restrictions to the immigration of Chinese laborers into the US. As a result, Chae Chan Ping’s certificate of re-entry had been voided.
A federal district court – and ultimately the Supreme Court – ruled that Chae Chan Ping had no right to enter the US and that he was not unlawfully detained. The incident has become one of the most famous cases of US immigration law – the Chinese Exclusion Case. The Supreme Court was clear in its judgment: “The power of exclusion of foreigners being an incident of sovereignty.” Any licence to enter the country was “held at the will of the government, revocable at any time at its pleasure”.
Over the weekend, several foreign nationals were detained at airports across the United States as an immediate effect of Donald Trump’s executive order imposing a temporary ban on immigration from seven countries.
A federal district court judge issued an emergency order restraining the Trump administration from removing anyone from the seven countries if they had been legally authorised to enter the US. The order aimed to safeguard the entrants’ rights to equal protection and due process under the US constitution.
So what changed between the Chinese Exclusion Case and the events that unfolded in the first week of Trump’s presidency? From one perspective, not much. The words of the Supreme Court in the Chinese Exclusion Case are still valid: “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”
Trump’s executive order is in many ways an expression of that longstanding government power. There are few obstacles in the way of this power: aliens at the border, who have not yet been admitted, have few, if any, rights under the US constitution.
Nevertheless, a few important things have changed since the days of Chae Chan Ping. Admitted and resident aliens (as opposed to aliens at the borders) have increasingly been brought under the umbrella of the US constitution. Several cases throughout the 20th century have confirmed that states (and to some extent even the federal government) cannot discriminate against resident aliens. They are entitled to due process and equal protection under the constitution. That’s in part why the district court order could temporarily halt removals under Trump’s.
States also now have obligations towards foreigners under international law. These limit the unfettered sovereignty to exclude aliens that the Supreme Court upheld in Chae Chan Ping’s case. Under the 1951 Geneva Convention, for instance, state parties, including the US, have pledged to not send back people escaping persecution.
And under the International Covenant on Civil and Political Rights, any person has the right to enter “their own country”. The UN Human Rights Committee ruled that “one’s own country” is a broader concept than “country of nationality”. One’s own country can be the country where a person has close personal and family ties, as well as an intention to remain. This is a further constraint on a state’s power to exclude (although the US has not signed up to all elements of this covenant).
State and individual
All of this is part of an important legal shift. Where states once had complete sovereignty in policing their borders to protect national interests, that sovereignty is now limited by a more complex set of individual rights. Those rights are a nuisance for governments. They constrain sovereign power and make independent nations a touch less independent. But, at the same time, they make their citizens more free. They shield individuals, to some extent, from the effects of discretionary powers that governments retain in managing their borders.
This trade-off between sovereignty and freedom is also being seen in the UK in debates about Brexit. British anxiety over controlling borders and the desire to vigorously reaffirm the interests of untrammelled sovereignty are driven by the same logic as Trump’s immigration restrictions. Both struggles score a victory for sovereignty at the expense of transnational lives.
This may seem a problem only for EU citizens living in the UK, or UK nationals living in Europe. Or for the unlucky people caught up in the current confusion in US airports. But it isn’t really.
Most people have transnational interests these days. They work across borders, or fall in love across borders. They might have family ties across borders or buy products across borders. They might even just look across borders out of curiosity. They might, one day, need to seek refuge across a border.
The unpredictable contingencies of human and natural history may prevent a person from one day to the next from calling a place home.
National sovereignty certainly protects worthwhile collective interests, such as security. However, in its populist 21st-century version, it tends to come hand-in-hand with an illusory promise of closure and protection. While purportedly protecting “the people’s” interests, it erodes their individual rights. It sacrifices these individual rights to the agendas of national interests that may prove volatile or anachronistic.
Rights are fragile, particularly the ones that cut across borders. That’s clear in the stories of a Chinese immigrant and of the unlucky US-bound travellers who, a century later, have fallen into the same trap.
Those rights deserve to be protected, even if feeble safeguards is all we can offer. They are part of our freedom.