Marginality’s Marginalia: Difference and Plenary Power in Early Asian American Literature

Since the Chinese Exclusion Case (Chae Chan Ping v. United States) was decided by the Supreme Court in 1889—and arguably earlier—the U.S. government’s absolute power over immigration, deportation, and the construction of an American people has been an “overriding governmental interest” (Ancheta 1998, 86).¹ Further, the Court’s series of “racial exclusion cases have never been overturned or even modified,” allowing them to serve as the “primary source” of “decisional law”—case law whose decisions establish foundational grounds and parameters—that “lays the groundwork for using national sovereignty as the source of federal power over immigration (86). Absolutist at its core, plenary power is an unofficial delegated power, the result of which is that both Congress and the president are able to make law or realize executive orders through the deference or noninterference of the Supreme Court (Wilkins 1994, 359). In regards to immigration, exclusion, expulsion, and deportation, the Court maintains a laissez-faire attitude toward issues or decisions related to sovereign power, such as the ability to construct and maintain populations through targeted—racially or otherwise—law. From its first affirmative formalization in the Chinese Exclusion Case (the “power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States”) to its development in Ekiu v. United States (“every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to describe”), plenary power serves to wall off what are deemed “political questions” from constitutional analysis and racialist decisions from judicial review (Chae 1889, 609; Ekiu 1892, 659; Fong Yue Ting v. United States 1893, 712). In the twentieth century, “racial considerations” were minimized or neutralized in “immigration and naturalization laws”—if at all—“by congressional action, not by the courts” (Wilkins 1994, 88). In effect, racial/racist laws concerning immigration, naturalization, or deportation “would still be constitutional if enacted today” (89). Neil Gotanda deems this process, in a related context, “citizenship nullification,” which he defines as “the ability to invoke ‘foreignness’ to deny full political participation to any person of Asian ancestry” (2001, 83). As a result, race, citizenship, admissibility, and exclusion have been central tools in limiting or revoking constitutional protections for Asians and Asian Americans—all of which are incidents of sovereignty.

The congressional process of tightening immigration restrictions from 1882 to 1964 has been characterized as the casting out of Asian Americans from the “people’s domain,” resulting in the establishment of the category of permanent “sojourners” (Kim 1994, 95). And the general movement of the U.S. government in this time period is one of making Asian America an abject entity by allowing the curtailment of most Asian immigration, assenting to various state-based alien land laws, and preventing social growth by restricting heterosexual reproduction. The central problem for this period in regards to the Asian presence in America—not including Japanese American internment, which is a different, related schema—involves a redefinition of sovereignty through the Supreme Court, which was paradoxically deferential to its perceived constitutional duty while actively laboring to abandon judicial review. Sovereignty’s praxis, plenary power, was also retheorized in the Supreme Court: from a “last-in-time” philosophy—when a “federal statute could supercede a prior treaty”—to one of “inherent powers,” from an attempt to justify and theorize national sovereignty in relation to temporality and the Constitution to a proclamation of sovereignty’s unfounded (and unaccounted for) power (Cleveland 2002, 52). While scholars argue that this shift in the practice of sovereignty is actually a weakness—see Mae Ngai’s claim that because sovereignty is “contingent” it is revisable or Sarah Cleveland’s argument that the potential exists for the Supreme Court to...