The Lost Brown v. Board of Education of Immigration Law

Abstract

This Article proposes that in 1957, the Supreme Court came close to applying Brown v. Board of Education to immigration law. In Brown, the Supreme Court held that school segregation was unconstitutional. Ultimately, Brown came to be understood as prohibiting almost all racial classifications. Meanwhile, in a line of cases exemplified by Chae Chan Ping v. United States and Fong Yue Ting v. United States, the Supreme Court held that Congress enjoyed plenary power to discriminate on any ground, including race, in immigration law. These holdings have never been formally overruled. Immigration, then, is said to be an exception to the general rule of Brown and Bolling v. Sharpe.

In 1957, however, the Supreme Court granted certiorari in United States ex rel Lee Kum Hoy v. Murff, to resolve the question of the permissibility of race discrimination in the immigration context. The case involved a policy under which immigration officials tested the blood of Chinese people immigrating as children of U.S. citizens to determine whether they were related to their claimed parents, but not the blood of similarly situated members of other races. The Second Circuit, over the dissent of Judge Jerome Frank, upheld the discriminatory policy, so the Court had no reason to take the case unless it thought the decision was incorrect. While the Supreme Court ultimately granted the petitioners relief on other grounds, records of the Court and the short per curiam opinion suggest that the Court may have been prepared to hold at least this form of discrimination in immigration unconstitutional.

Keywords: immigration, plenary power, constitutional law, Brown v. Board of Education