Uneasy Money

Senator Kamala Harris asked Judge Kavanaugh if he considered the infamous Supreme Court decision in Chae Chan Ping v. United States (AKA Chinese Exclusion Case) as a valid precedent. Judge Kavanaugh disgraced himself by refusing to say that the case was in error from the moment it was rendered, no less, if not even more so, than was Plessy v. Ferguson overturned by the Supreme Court in Brown v. Board of Education.

The question is why would he not want to distance himself from a racist abomination of a decision that remains a stain on the Supreme Court to this day? After all, Judge Kavanaugh, in his fastidiousness, kept explaining to Senators that he wouldn’t want to get within three zipcodes of a political controversy. But, although obviously uncomfortable in his refusal to do so, he could not bring himself to say that Chae Chan Ping belongs in the garbage can along with Dred Scott and Plessy.

Here’s the reason. Chae Chan Ping is still an important precedent that has been and continues to be relied on by the government and the Supreme Court to uphold the power of President to keep out foreigners whenever he wants to.

In a post in March 2017, I quoted from Justice Marshall’s magnificent dissent in Kleindienst v. Mandel, a horrible decision in which the Court upheld the exclusion of a Marxist scholar from the United States based on, among other precedents, the execrable Chae Chan Ping decision. Here is a brief excerpt from Justice Marshall’s opinion, which I discuss at greater length in my 2017 post.

The heart of appellants’ position in this case . . . is that the Government’s power is distinctively broad and unreviewable because “the regulation in question is directed at the admission of aliens.” Brief for Appellants 33. Thus, in the appellants’ view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the “political” branches of Government, Congress, and the Executive.

These cases are not the strongest precedents in the United States Reports, and the majority’s baroque approach reveals its reluctance to rely on them completely. They include such milestones as The Chinese Exclusion Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149 U.S. 698 (1893), in which this Court upheld the Government’s power to exclude and expel Chinese aliens from our midst.

Kleindienst has become the main modern precedent affirming the nearly unchecked power of the government to arbitrarily exclude foreigners from entering the United States on whatever whim the government chooses to act upon, so long as it can come up with an excuse, however pretextual, that the exclusion has a national security rationale.

And because Judge Kavanaugh will be a solid vote in favor of affirming the kind of monumentally dishonest decision made by Justice Roberts in the Muslim Travel Ban case, he can’t disavow Chae Chan Ping without undermining Kleindienst which, in turn, would undermine the Muslim Travel Ban. 

Aside from being a great coach of his daughter’s basketball team, and superb carpool driver, I’m sure Judge Kavanaugh appreciates and understands how I feel.

Whatta guy.