The Supreme Court’s decision last week to allow part of President Trump’s travel ban to take effect means immigration officials will spend their summer sorting strangers from those with genuine U.S. relationships. Travelers from six Muslim-majority nations are now temporarily banned from entering the United States unless they can prove a “bona fide” American connection, pending a final decision by the court in the fall.
Until then, liberal America will hold its breath, hoping that come October, the justices will be convinced to strike down Executive Order 13780. Yet it would be unwise, especially in the long-term, to trust the Supreme Court to hold back a rising tide of nationalist populism. The fate of Chinese migrants in the 1880s — who appealed to U.S. law as a defense against their arbitrary exclusion — should remind us that the courts are not always the allies of those who fight exclusion based on popular prejudice.
In the 1870s, economic insecurity among the white working classes sparked protests against Chinese migrants and gave rise to populist anti-immigrant parties. Newspapers and agitators warned constantly of the “yellow peril,” but it was Chinese migrants who were most frequently imperiled. The largest mass lynching in American history took place in Los Angeles on Oct. 24, 1871, when 17 Chinese immigrants were killed.
Anti-Chinese racism soon gained the force of law. Despite having signed a treaty with China in 1868 recognizing “a person’s inherent and unalienable right to change his home and allegiance,” within 20 years Congress had completed the near-total exclusion of Chinese migrants. The 1875 Page Act — which banned all Chinese suspected of being forced laborers, convicts or prostitutes — was followed, in 1882, by the Chinese Exclusion Act, barring all Chinese immigration for 10 years. The prohibitions against Chinese immigration to the United States were not fully lifted until 1965.
The parallels between these measures and the 2017 travel ban are striking. The initial laws were relatively narrow in scope. An array of exemptions and exclusions created exceptions, allowing — at least initially — some additional Chinese migrants to enter the country.
The 1882 Act officially applied to only Chinese laborers. This allowed merchants, students and government officials, as well as their families, to travel to the United States so long as they could certify their credentials.