The Constitutional Rights of Excludable Aliens: History Provides a Refuge

Abstract

This Comment will explore questions left unanswered by the Court in Jean v. Nelson. In examining the scope of the government's exclusion power and the constitutional position of the excludable alien, this Comment proposes a new framework for analyzing the government's authority over immigration law generally. The proposed framework consists of a two part test which is based on a reexamination of two early Supreme Court immigration decisions. The first prong of the test defines and limits the scope of the government's plenary power over immigration through a framework derived from Wong Wing v. United States." The second prong is based on Kaoru Yamataya v. Fischer (The Japanese Immigrant Case) and establishes constitutional limitations on the government's authority over immigration even when exercised within the scope established under the Wong Wing framework.