Document Type

Article

Publication Date

2022

Comments

This article situates former President Trump’s use of executive authority within a larger history of using public health and welfare as a means of promoting anti-immigrant policies rooted in nationalism and xenophobia. Trump is not the first, nor will be the last, politician to stoke nativist and racist anxieties for political gain. Part I examines the move towards Chinese exclusion in the United States during the late nineteenth century as a case study of how racist scapegoating of an Asian immigrant population for domestic economic problems slowly evolved into, and was legitimized by, legislation centered around public health and safety, and ultimately national security. Anti-Asian sentiment began as a regional West coast issue of labor competition, but exploded into a national issue as a public health and safety concern by connecting the Chinese population to disease and contagion. This led to the first federal immigration restrictions in the United States, the Page Act of 1875 that was quickly followed by the broader Chinese Exclusion Act of 1882. Chinese exclusion, moreover, created the foundation for the constitutional theory of plenary power, itself based on wartime powers of the federal government, as interpreted by the Supreme Court, that became the bedrock for all federal immigration power thereafter. Part II considers how national security, the rhetoric of war, and wartime emergency powers of the national government served as touchstones for continued structural discrimination against Asian American populations in the United States through the twentieth century and into the twenty-first century. National security and the need for broad discretionary powers of the federal government during states of emergency were the legal justifications for the disparate treatment of ethnic immigrant groups, which was endorsed by the Supreme Court in Korematsu v. United States and Trump v. Hawaii. Part III analyzes how this expansion of emergency federal immigration power in the wake of Trump v. Hawaii emboldened Trump to engage in more expansive exclusions increasingly blurred the lines between national security, national interest, and baseless xenophobic scapegoating

Publication Citation

9 Belmont L. Rev. 486 (2022).

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