Congress Has Apologized for the Chinese Exclusion Act of 1882: Now the Court Should Undo the Damage

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The U.S. House of Representatives has adopted a resolution apologizing for the Chinese Exclusion Act of 1882, which barred the admission to the U.S. of nearly all Chinese until 1943. The Act enshrined race and nationality discrimination in law. It devastated the Chinese-American community that had been established in the mid-19th century and reinforced racial stereotypes.

The House’s June 18 resolution follows the adoption of a companion resolution in the Senate on October 6, 2011.

Unfortunately, not all the damage of the Act has been undone. In upholding the Act, the Supreme Court announced the “plenary power doctrine.” This doctrine holds that the power of Congress over the admission and deportation of aliens is absolute and not subject to judicial review as to constitutionality. The doctrine has been called the “last vestige of an antique period of American law.” Its stubborn persistence continues to oblige courts to turn a blind eye to laws that infringe on due process or make invidious distinctions based on race, nationality, ideology, or sex.

Congress’ apology for the Chinese Exclusion Act should give the Supreme Court pause to consider overruling the doctrine that the Act engendered.

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