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97 Ind. L.J. 1455 (2022)
Systemic Racism in the U.S. Immigration Laws

handle is hein.journals/indana97 and id is 1507 raw text is: Systemic Racism in the U.S. Immigration Laws KEVIN R. JOHNSON* This Essay analyzes how aggressive activism in a Calfornia mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy. Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed plenary power absolute authority-over immigration and that racist immigration laws were immune from judicial review of their constitutionality. The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with devastating impacts on noncitizens of color. As the nation attempts to grapple with the Trump administration's brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation's social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy. * Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law. Jack Chin provided helpful comments on a draft of this Essay. Law librarian David Holt and law students Andrea Reyes, Joana Peraza Lizarraga, Monica Ortega, and Corina Yetter all provided invaluable research assistance. In April 2021, I had the distinct honor of delivering virtually the Jerome Hall Lecture at Indiana University Maurer School of Law. That lecture informed and inspired the analysis in this paper. Thanks to Dean Austen Parrish and Professors Luis Fuentes-Rohwer and Christiana Ochoa for inviting me to deliver the Hall Lecture and extending gracious hospitality at every step of the way. I dedicate this Essay to my colleague, mentor, and friend, the late Michael A. Olivas, who made my academic career possible.

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