Abstract

Excerpted From: Gabriel J. Chin, Re-Rethinking Asian Exclusion and Color-Blind Immigration, 79 Southern Methodist University Law Review 35 (Winter 2026) (98 Footnotes) (Full Document)

At least if the Supreme Court is a reliable reporter of American ideals, the United States has long deemed itself a nation of immigrants. In 1978, the Court stated: “As a [n]ation we exhibit extraordinary hospitality to those who come to our country, which is not surprising for we have often been described as 'a nation of immigrants.”’ In 1950, the Justices claimed: “The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.”

There is a large measure of truth to this judgment. However, for most of U.S. history, it was most accurate only with respect to white immigrants. In 1950, even as the Court claimed the nation had a tradition of hospitality, U.S. law racially restricted both naturalization and immigration. Indeed, for most of U.S. history, the law discouraged or prohibited non-white immigration, first through racially restrictive naturalization laws, and also through a series of specific bans aimed at persons of African ancestry in the Founding Era, and later, Asians. State and federal law restricted many benefits and opportunities by race and citizenship, as the United States encouraged white immigration to populate the nation’s expanding territory in the West, toward the Pacific Ocean.

In earlier decades, the Justices minced no words about the racial policy of U.S. law. Chief Justice Roger B. Taney, for example, explained why a “Malay” sailor from the Philippines could not be treated as white for purposes of the segregated evidence rules of the time:

The colonists were all of the white race, and all professed the Christian religion; from the situation of the world at that time, no persons but white men professing the Christian religion could be expected to emigrate to Maryland; and if any person of a different color, or professing a different religion, had come into the colony, he would not, at that time, have been recognized as an equal by the colonists, or deemed worthy of participating with them in the privileges of this community. The only nations of the world which were then regarded, or perhaps entitled to be regarded, as civilized, were the white Christian nations of Europe; and certainly emigrants were not expected or desired from any other quarter.

The political community of the colony was composed entirely of white men professing the Christian religion; they possessed all the powers of government granted by the charter. Christian white men could not be reduced to slavery, or held as slaves in the colony; but they might, according to the laws of the colony, lawfully hold in slavery negroes or mulattoes, or Indians. The white race did not admit individuals of either of the other races to political or social equality; they were regarded and treated as inferiors, of whom it was lawful, under certain circumstances, to make slaves.

Similarly, in The Passenger Cases, an antebellum decision limiting state authority to regulate immigration, the majority justified its decision on the ground that if the rule were otherwise, states could frustrate the federal policy of encouraging white migration. Justice Grier explained: “It is the cherished policy of the general government to encourage and invite Christian foreigners of our own race to seek an asylum within our borders, and to convert these waste lands into productive farms, and thus add to the wealth, population, and power of the nation.” Justice Catron noted: “We have invited to come to our country from other lands all free white persons, of every grade and of every religious belief ....”

Reconstruction, intended to be a systematic purge of race from U.S. law according to some, affected racial restriction in immigration almost not at all. Congress repeatedly considered and rejected proposals to make naturalization race-neutral, and included provisions in a number of civil rights laws and constitutional amendments consciously designed to allow racial discrimination against non-white noncitizens. As a generalization about the effects of Reconstruction, it might be said that a significant provision was made for African-Americans freed from slavery, but other forms of racial discrimination were allowed to continue, lest undesirable nonwhite immigration be permitted to occur. Into the twentieth century, the Justices self-consciously identified as white in their opinions.

An important discussion of immigration policy came in 1923 when the Court had to determine whether an Asian-Indian immigrant was white and therefore eligible to naturalize. The Court explained that those welcomed to the country were Europeans, and, therefore, an Asian-Indian was not among those invited to become citizens:

The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to 'any alien being a free white person’ it was these immigrants--bone of their bone and flesh of their flesh-- and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and other immigrants of like origin, who constituted the white population of the country when section 2169, re-enacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning.

The policy of encouraging white migration and discouraging that of others was remarkably effective. As late as 1960, the Asian population of the United States was around one-half of one percent. Although many persons born in the United States traced their origin to Africa, few of them were immigrants or descendants of recent immigrants.

Thanks to the Immigration and Nationality Act Amendments of 1965, U.S. immigration policy changed dramatically. Before 1965, a supermajority of immigrants were white people from Europe. After, based on race-neutral selection criteria, a supermajority were non-white people from Asia, Africa, and Central and South America. I have argued that eliminating race was intentional, based on the civil rights ethic of the time (basically the same legislators supported and opposed the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Immigration and Nationality Act Amendments of 1965) and contemporary evidence on the news media and in Congress recognizing that there was substantial unmet demand from nontraditional sources of immigration. Others disagree with what the results were expected to be. But no one questions that racial restrictions were in fact removed from the Immigration and Nationality Act, or that the demographics of the immigrant stream dramatically changed. Because of the race-neutral policy of the law, some forecast that the United States will become a majority-minority nation within a few decades.

Immigration reform in 1965 was an elite decision. Even if genuinely anti-racist on the part of many of the Senators and Representatives who passed it and the President who signed it, it was not a popular policy choice. Polling at the time showed that the majority of the American people preferred white immigration, and felt little need to change existing race-based immigration policy. However, in addition to domestic concerns, civil rights reforms were motivated by geopolitical considerations; the Cold War and the battle for the hearts and minds of those in the Third World were salient to Justices and elected officials even if less so to Joe and Jane Six-Pack.

Over time, the idea that race-neutral immigration benefited the United States grew. In 1965, according to Gallup, 7% of those surveyed thought immigration should be increased, while 33% thought it should be decreased. 39% supported the same level, while 20% had no opinion. By 2025, 64% of those polled thought immigration should be maintained or increased, and 30% supported a reduction. In a significant way, the decision of 1965 had been ratified by the people of the United States.

In 2025, the United States is experiencing something of the opposite of the 1965 reform--an elite reaction against immigration in the face of popular support for it. In some substantial ways, we are experiencing an echo of the post-Civil War demand for Asian exclusion from the United States. Many of the same issues are live again.

[ . . . ]

From the late 1880s until the 1950s, a number of states had laws specifically designed to restrict the rights of Asians to own real property. The purpose of these laws was to discourage immigration. To validate such laws, the Civil Rights Act of 1866 was amended in the drafting process to apply only to citizens. The Supreme Court upheld these laws in the 1920s. The laws generally did not classify by race but borrowed federal immigration classifications, for example, by allowing those racially eligible to naturalize to own land, or those who had filed valid declarations of intention to naturalize, and thus were necessarily racially eligible.

In the late 1940s and 1950s, such laws were invalidated by the Supreme Court in part, and by several state supreme courts under the Equal Protection Clause. Modern alienage jurisprudence would seem to invalidate such laws passed by states, either based on equal protection or federal preemption grounds.

A number of states have recently enacted new laws to prevent Chinese people and other undesirable foreign nationals from owning land. In particular, legal scholar Leo Yu has written about this phenomenon. Many of these laws are inapplicable to dual citizens or lawful permanent residents of the United States; some apply only to those domiciled in a specified foreign country. A U.S. district judge has enjoined an Arkansas statute; an appeal is pending in the Eighth Circuit. A Florida district court declined to enjoin a statute in that state; a panel of the Eleventh Circuit issued a temporary stay, but after full briefing and argument on the motion for a preliminary injunction, determined 2-1 that the statute was likely to be found constitutional.

There are strong arguments that the Eleventh Circuit’s decision is incorrect; the plaintiffs noted that the Court in Terrace did not apply strict scrutiny, but that cannot be dispositive in that the concept of strict scrutiny had not yet been developed when Terrace was decided.

They also did not account for the fact that Terrace applied ordinary equal protection review, but the substantive content of that review had changed. In Terrace, the Court said that states could freely borrow from federal classifications: “The state properly may assume that the considerations upon which Congress made such classification are substantial and reasonable. Generally speaking, the natives of European countries are eligible. Japanese, Chinese[,] and Malays are not.” But that legal principle was repudiated no later than 1948, when the Court rejected the idea that states could adopt federal immigration classifications for their own law:

It does not follow ... that because the United States regulates immigration and naturalization in part on the basis of race and color classifications, a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living.

But perhaps the majority is right, and states are free to target at least some noncitizens based on their own vision of sound public policy. To draw from some of the political controversies of 2025, perhaps states have the power, if they choose, to ban land ownership by Palestinians or Ukrainians, while others will exclude Israelis or Russians. In addition to the foreign policy concerns that would be raised, individual nationals of these countries would no doubt feel aggrieved, as might U.S. citizens and lawful permanent residents sharing those national origins. This is particularly so given that individuals do not necessarily share the political positions of the leaders of their country.

Whatever the outcome of the litigation surrounding the new alien land laws, their rise is another example of the rejection of the idea that the United States is a country that judges individuals as individuals, that people are welcome from anywhere so long as they share the values of the nation. Instead, it reflects the Amy Wax idea that we can tell a great deal about an individual based on their race or national origin.

In late November 2025, in response to a shooting of National Guard members by a lawfully admitted Afghani refugee, President Trump announced a ““permanent pause” on immigration from developing countries to the United States. One commentator explained:

The directive, which explicitly links the cessation of migration to the preservation of “Western Civilization” and the removal of “disruptive populations,” has precipitated a profound identity crisis for the American republic. It has resurrected political language and legal theories dormant since the 1920s, challenging the post-World War II understanding of the United States as a civic nation defined by adherence to constitutional ideals rather than ethno-cultural origins.

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The United States is in the middle of this history, so the outcome is uncertain. But whatever else it does, the resurgence of ethno-nationalism puts great pressure on the doctrines of the Supreme Court. It has embraced the idea that the Constitution is colorblind. Possessed of that idea, in one way or another, it has struck down a range of laws intended to protect the rights of people of color, including Section 5 of the Voting Rights Act and affirmative action in educational admissions. At the same time, it has embraced a presumption of good faith to uphold immigration and other actions, such as the Muslim Ban from the first Trump Administration, in spite of substantial evidence of animus.

The problem with this trust of government is that after cases like Yick Wo and Brown v. Board of Education prohibiting admitted racial discrimination and express racial classifications, would-be discriminators know they must use proxy categories. They may do so quite effectively, as the gerrymandering cases and voting rights cases, in the view of many, show. Immigration forms, fees, processes, and procedures can be used to effectively deprive people of rights. It could be argued that a range of recent decisions may be explained on the ground that the Supreme Court indulges a strong presumption that racial discrimination simply does not exist, rather than engaging in a vigorous, candid, effort to root it out. If this turns out to be the case, the United States could have colorblind law, but without ending intentional discrimination. It is difficult to imagine that resolution being either just or stable.

Edward L. Barrett Jr. Distinguished Professor of Law, UC Davis School of Law.