Hundreds of children still haven’t been reunited with their parents after being separated at the U.S.-Mexico border. Many of us are outraged. This sense of outrage tells us that something is wrong. And what is wrong is not just the Trump administration’s 2018 policy. It’s a problem with how federal U.S. authority over immigration was conceived way back in the 1880’s.
As I researched my book, God and the Illegal Alien: United States Immigration Law and a Theology of Politics, I learned about a fascinating Supreme Court case from 1889 that made it possible for girls and boys to end up in cages at the border. In that case, Chae Chan Ping had legal permission to live in California for years, but the U.S. Congress was making it harder for people of Chinese descent to enter the country or stay in once they arrived (in a story told recently on PBS). Ping left San Francisco for a visit to Hong Kong with a certificate saying that he could return to the United States, but while he was on board the Belgic bound back to San Francisco, Congress annulled the kind of certificate he had. Chinese non-citizens who left the country could not come back in.
As the Belgic came into the San Francisco harbor, Chae Chan Ping was held on board. His lawyers argued that his detention was unjust and unconstitutional. But the Court decided 9-0 against him, arguing that being a sovereign nation meant that the United States could exclude an “alien” from entering its territory. The Court gave reasons for excluding Chinese persons, saying that they were like a nation within a nation that threatened the moral, economic, and political unity of the country, in terms most would find repugnant today.
The Court said that it didn’t need any reasons to exclude non-citizens. If the American people decided it was in their interests to exclude a class of non-citizens, acting through its representatives in Congress, that class could be excluded. Establishing whether Chinese immigrants were concerned about the wellbeing of the communities didn’t matter, nor was there any talk of the worth of every human life. Justice didn’t matter; God didn’t matter. The people of the United States, acting as a majority, just could exclude whatever non-citizens they wanted to exclude. And so Chae Chan Ping was made to leave the United States.
This case meant that in 2018, Jeff Sessions, who used to represent my home state of Alabama in the Senate, could announce a policy that would separate children from their parents as they crossed the border. How? What happened in 1889 meant that if the United States decided it was in its interests to exclude a foreigner, it could. In the years since then, a few holds have been placed on this right to exclude and expel aliens. But the limits are few. In 2018, the Trump administration decided to crack down on illegal border crossings and to highlight the federal misdemeanor of “illegal entry” as a crime. To do this it just can imprison those charged of crimes until they appear in court. It can separate children from their mothers and fathers who are charged with federal offenses. It can place toddlers in cages.
But this is outrageous, many will say. I agree. Our sense of outrage shows that we want something more than federal sovereignty over immigration. We want justice that limits the actions of our government. Where does that justice come from? Much can be done to limit the excesses of the federal government through appeals to constitutional limits on executive power. International law and human rights can also be invoked to limit the claims of the government.
The Christian tradition offer a more steadfast kind of justice. This is a justice enacted by a God who transcends the will of the American people. In Psalm 82, a song from the Hebrew and Christian Scriptures, God is said to hold judgment over human authorities. God judges them, calling them to do justice to the weak and the orphan, to rescue the oppressed and the needy. As I join others in worship, I cry out to a God who is calling the Trump administration to account.
Dr. Robert W. Heimburger (@robheimburger) is the author of God and the Illegal Alien: United States Immigration Law and a Theology of Politics, now available in paperback from Cambridge University Press.