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100 Yale L.J. 2335 (1990-1991)
The Mandate of U.S. Courts to Protect Aliens and Refugees under International Human Rights Law

handle is hein.journals/ylr100 and id is 2349 raw text is: The Mandate of U.S. Courts to Protect Aliens and Refugees Under International Human Rights Law Arthur C. Heltont I. INTRODUCTION Professor Lea Brilmayer proposes that American courts apply international law in disputes concerning the rights of individuals to be treated fairly by governments even if such an application would require the frustration of domestic policy.' The vertical model that she postulates to facilitate such judicial intervention, if followed by the courts, could buttress the vindication of the human rights of aliens and refugees in the United States. As Professor Brilmayer notes, American courts are wary of looking to international law to uphold the rights of individuals against violation by govern- ments, although they do often turn to constitutional (and other domestic law) principles for guidance.2 In the area of immigration, however, it is sometimes unclear how much legal protection the Constitution affords aliens and refugees in the United States. Over a century ago, in Chae Chan Ping v. United States (The Chinese Exclusion Case), the Supreme Court declared that the power to exclude aliens, which was not enumerated in the Constitution, is an inherent attribute of sovereignty that is largely immune from constitutional restraint.' Shortly thereafter, in Fong Yue Ting v. United States, the Court said that the power to expel aliens was one to be determined by the political departments of the government and. that the judicial department cannot properly express an opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject.4 This early expression of judicial deference to the legislature partakes of Professor Brilmayer's horizontal model of the traditional applica- tion of international law in which the proper parties are considered to be states and not individuals.5 t Director, Refugee Project, Lawyers Committee for Human Rights in New York City; A.B., Columbia University, 1971; J.D., New York University, 1976. 1. Brilmayer, International Law in American Courts: A Modest Proposal, 100 YALE L.J. 2277 (1991). 2. Id. at 2278-79. 3. 130 U.S. 581 (1889); see also Nishimura Ekiu v. United States, 142 U.S. 651 (1892). 4. 149 U.S. 698, 731 (1893). 5. Brilmayer, supra note 1, at 2292-95 & passim. 2335

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