The Chinese immigrant community quickly organized against the Geary Act. Led by the Chinese Six Companies, which was “the umbrella organization for the large kinship and mutual benefit organizations established in the United States to serve Chinese immigrants,” individual Chinese immigrants refused to apply for the certificates of residence.13 Then, when the government began ordering the deportation of Chinese workers who did not register for certificates, the Chinese Six Companies mounted a legal challenge to the new law and the government’s power to deport. Their lawyers selected three test cases: Fong Yue Ting and Wong Quan, who had each lived in the United States for at least thirteen years, and Lee Joe, who had lived in the United States for eighteen.14 The Supreme Court combined their cases into one, Fong Yue Ting, and heard it within a year.15
Once in front of the Supreme Court, lawyers for Fong Yue Ting, Wong Quan, and Lee Joe challenged both the way Chinese exclusion laws had created an explicit racial class and the government’s ability to deport at all. The lawyers argued that Chinese exclusion violated the equal protection clause of the Fourteenth Amendment since it was aimed only at Chinese immigrants. Chinese immigrants, they pointed out, were certainly not being treated the same as Irishmen or Frenchmen.16 Moreover, they claimed the law violated the Tenth Amendment to the Constitution, under which “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.” Since the colonial period, some states had exercised the power to remove immigrants. When the federal government assumed this power in Chinese exclusion, the lawyers maintained, it was creating the power to deport, without enumeration in the Constitution.17 The attorneys for the appellants, therefore, attacked the Geary Act by arguing that Congress could not create an explicit racial class, and, even if lawmakers could, they could not do it through deportation.
The lawyers then made the case that, if the Supreme Court upheld the federal government’s power to deport and the racism of the law, then the deportation proceedings faced by Fong Yue Ting, Wong Quan, and Lee Joe were unconstitutional. Immigration authorities had arrested Fong Yue Ting, Wong Quan, and Lee Joe under civil proceedings, under civil law. Their lawyers argued that deportation represented a punishment. The proceedings to administer a deportation, therefore, needed to be consistent with the constitutional rights afforded to criminal defendants in the Fourth, Fifth, and Sixth Amendments. The proceedings set up under Chinese exclusion, they argued, did not protect against unreasonable searches as outlined in the Fourth Amendment. Nor did the administrative hearings of deportation provide Fifth Amendment due process or the Sixth Amendment right to a jury trial. The lawyers knew, as many others would find out not long after the Court decided the case, that there was a great deal at stake in the legal designation of whether or not deportations represented a punishment.
A large part of the case for the Chinese immigrant community also looked to challenge the ways that the new federal power of deportation violated rights of long-term residents. Lawyers for Fong Yue Ting, Wong Quan, and Lee Joe argued that since 1882, there were two separate classes of Chinese workers in the United States: unlawful residents and lawful, long-term residents.18 The unlawful residents, the lawyers argued, had come to the United States in violation of the law of Chinese exclusion in operation since 1882. This class, the lawyers acknowledged, were “lawless intruders … having no right to be here.”19 The other class, though, the one that Fong Yue Ting fell into, was lawful permanent residency. The lawyers claimed that this class of immigrants constituted a large proportion of the Chinese laborers in the United States in 1893. “Tens of thousands of Chinese laborers,” they argued, had entered the United States before the Chinese Exclusion Act “and remained here ever since.”20
The Six Companies lawyers insisted that long-term Chinese residents had what amounted to permanent residence and that deporting them violated international law. The lawful right to remain for long-term residents, as the lawyers understood it, originated in two sources. First, it was rooted in a category of international law known as the status of denizen; second, it derived from the fact that the U.S. government had invited these workers to come to the United States under an international treaty. The immigrants were clearly not citizens. The lawyers claimed that Chinese laborers who had moved to the United States prior to 1882 fell into the category of “denizens,” or what would soon become known as lawfully admitted immigrants. The lawyers also claimed that U.S. law granted long-term residents lawful status; these immigrants had lawful residence because, under the Burlingame Treaty of 1868 signed by China and the United States, thousands of Chinese laborers had set up legal residence in the United States by invitation.21 The immigrants had, in effect, “been told that if they would come here they would be treated just the same as we treat an Englishman, an Irishman, or a Frenchman. They have been invited here, and their position is much stronger than that of an alien, in regard to whom there is no guarantee from the Government, and who has come not in response to any invitation, but has simply drifted here because there is no prohibition to keep him out.”22 The lawyers insisted it was unlawful to expel such immigrants, except as a punishment for a crime or during a war.
In a five-to-three decision, the Supreme Court ruled against Fong Yue Ting, Wong Quan, and Lee Joe and unambiguously endorsed the government’s power to deport. To address the Tenth Amendment challenge, the Court linked the authority of the federal government to deport people to the power of exclusion, which the Court had earlier cleared. In Chae Chan Ping v. United States (1889) and Nishimura Ekiu v. United States (1892), the U.S. Supreme Court ruled that the federal government possessed the power to exclude immigrants.23 In these cases, the Court described the ability to exclude immigrants as originating from the sovereign’s authority to prevent foreign aggression. The Court looked to international law to justify the power of exclusion, citing scholars such as Emmerich de Vattel, Robert Phillimore, and Francis Wharton. As the Court put it, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”24 Here, as legal scholar Sarah Cleveland has pointed out, the Supreme Court “utilized international law as a source of authority for U.S. government action, but did not recognize it as a source of constraint.”25 The justices then extended this logic of sovereignty to establish the government’s additional authority to deport immigrants, finding that deportation was simply an extension of the government’s power to exclude. “The power to exclude aliens,” the Court wrote, “and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.”26
The Court declined to define or limit what constituted a foreign threat or an instance of aggression and, in doing so, resolved the Fourteenth Amendment challenge and upheld the racism behind Chinese exclusion. It did not matter what form a perceived aggression took, the Court wrote, “whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.”27 If the federal government determined that some event or instance represented a threat to national security, it possessed the power and authority to protect its national independence. By this logic, if the government found Chinese immigrants a threat, it had the right to exclude and deport them. The government could create a distinct racial class in immigration law, and that did not violate the Fourteenth Amendment.
When the Supreme Court delivered its decision, it seemed to uphold the power to place long-term residents and new immigrants on the same legal footing. Yet, the Court included a statement in its decision that seemed to acknowledge the existence of the legal category of domiciled or legally admitted aliens. “By the law of nations,” the Court admitted, “doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, acquire, in one sense, a domicil there … while they are permitted by the nation to retain such a residence and domicil, [they] are subject to its laws, and