The Supreme Court Didn’t Have to Rely on Xenophobic Logic

A little more than a century ago, in what are known as the Chinese Exclusion Cases, the Supreme Court said that the political branches possess sweeping powers over noncitizens who are seeking to enter the United States. The Court’s reasoning for granting Congress and the president these expansive powers wasn’t just because of some special status of the border. Rather, the Chinese Exclusion Cases were rooted in racism and xenophobia. The Court believed that the political branches should have the power to decide whether foreigners of another race pose a threat to the United States.

Today, a conservative majority, announced today, the Court held that these removals do not violate the constitutional guarantees of habeas corpus or due process. If the Constitution applied to those subjected to expedited removal, there would have been little doubt that the system was unconstitutional. The prohibits Congress from denying individuals the ability to file habeas petitions challenging their detentions. And the due-process clause of the Fifth Amendment entitles people to notice and a hearing, and sufficient process to guard against risks of error. That is, of course, if these clauses apply at all.