# Fong Yue Ting v. United States

> Supreme Court of the United States · May 15, 1893 · 149 U.S. 698

URL: https://www.frixlaw.com/law-library/cases/9417625

## Case

- **Full name:** Fong Yue Ting v. United States; Wong Quan v. United States; Lee Joe v. United States
- **Court:** Supreme Court of the United States
- **Decided:** May 15, 1893
- **Citations:** 149 U.S. 698; 13 S. Ct. 1016; 37 L. Ed. 905; 1893 U.S. LEXIS 2340
- **Precedential status:** Published
- **Opinion:** Dissent by Fullee
- **Judges:** Gray, Brewer, Field, Fullee
- **Cited by:** 576 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Reported overruled in part, on other grounds by The Japanese Immigrant Case, 189 U.S. 86 (1903) — not on the Supreme Court's list.
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9417625

## How later opinions describe it (automated extraction)

- holding that because deportation is not a crime, it does not implicate the Cruel and Unusual Punishment Clause
- holding that the political branches could deport residents based solely on their race and deem all people of “the Chinese race” incompetent to sign the affidavit needed for Chinese immigrants to remain lawfully
- explaining that “the provisions of the Constitution[] . . . prohibiting . . . cruel and unusual punishments[] have no application” to an order of deportation obtained “by appropriate and lawful means”

## Opinion text

Me. Chief Justice Fullee
dissenting.
I also dissent from the opinion and judgment of the court in these cases.
If the protection of the Constitution extends to Chinese laborers who are lawfully within and entitled to remain in the United States under previous treaties and laws, then the question whether this act of Congress so far as it relates to them is in conflict with that instrument, is a judicial question, and its determination belongs to.the judicial department.
However reluctant courts may be to pass upon the constitutionality of legislative acts, it is of the very essence of judicial duty to do so when the discharge of that duty is properly invoked.
I entertain no doubt that the provisions of the Fifth and Fourteenth Amendments, which forbid that any person shall be deprived of life, liberty, or property without due process of law, are in the language of Mr. Justice Matthews, already quoted by my brother Brewer, “ universal in their application to all persons within the territorial jurisdiction, without *762 regard to any differences of race, of color, or of nationality,” and although in Yick Wo’s case only the validity of a municipal ordinance was involved, the rule laid down as much applies to Congress under the Fifth Amendment as to the States under .the Fourteenth. The right to remain in the United States, in the enjoyment of all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most favored nation, is a valuable right, and certainly a right which cannot be taken away without taking away the liberty of its possessor. This cannot be done by mere legislation.
The argument' is that friendly aliens, who have .lawfully acquired a domicil in this country, are entitled to avail themselves of the safeguards of the Constitution only while permitted to. remain, and that the power to expel them and the manner of its exercise are unaffected by that instrument. It is' difficult to see how this ean be so in view of the operation of the power upon the existing rights of individuals; and to say that the residence of the alien, whep invited and secured by treaties and laws; is held in subordination to the exertion against him, as an alien, of the absolute and unqualified power asserted, is to import a condition not recognized by the funda-' mental law. Conceding that the exercise of the power to exclude is committed to the political department, and that the denial of entrance is not necessarily the subject of judicial cognizance, the exercise of the power to expel, the manner in which the right to remain may be terminated, rest on different ground, since limitations exist or are imposed upon the deprivation of that which has been lawfully acquired. And while the general government is invested, in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, or of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion. But the act before us is not an act to abrogate or repeal treaties or laws in respect of Chinese laborers entitled to remain in the United States, or *763 to expel them from the country, and no such intent can be imputed to Congress. As to them, registration' for the pur7 pose, of identification is required, and the deportation denounced for failure to do so is by way of punishment to coerce compliance with that requisition. No euphuism can disguise the character of the act' in this regard. It directs the performance .of a judicial function in a particular. way, and inflicts punishment without a judicial trial. It is,- in effect, a legislative sentence of banishment, and, as such, absolutely void. Moreover, it contains within it the germs of the assertion of an unlimited and arbitrary power, in general, incompatible with the immutable principles of justice,- inconsistént with the nature of our government, and in conflict with the written Constitution by which that government was created and those principles secured.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9417625. Public record. Not legal advice.