THE CHIARELLI DOCTRINE: IMMIGRATION EXCEPTIONALISM AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

• Author: Blum, Joshua

INTRODUCTION

In 1889, the Supreme Court of the United States (SCOTUS) set out the first judgment in what would become known as the "plenary power doctrine". In the Chinese Exclusion Case, a decision tinged with alarm about "vast hordes" of Chinese immigrants who would not assimilate, the Court held that immigration law is outside the scope of constitutional review. (1) To this day, the Chinese Exclusion Case has not been overruled. It continues to stand for the proposition that the power to deport non-citizens is an inherent and inalienable feature of sovereignty, and the immigration context is a space where substantive constitutional rights do not apply. (2). The plenary power doctrine has been subject to decades of attack from lawyers and scholars on its overtly racist origins and elusive justification. (3) It has been described as a "constitutional oddity" (4) and "an extraordinary doctrine of judicial abdication that has few if any analogues in other fields of public law." (5) This paper begins from the observation that over a century after the Chinese Exclusion Case, the Supreme Court of Canada has quietly built a similar doctrine of its own.

The Canadian Charter of Rights and Freedoms (Charter) (6) came into being in the late 20th century--in an age of human rights. There is no dispute that immigration law is subject to the Charter. (7) Yet, the Charter has come to be applied in the immigration context in a manner that would be unrecognizable to practitioners of any other area of law. (8) Through a series of tenuous propositions that have become binding precedents, the rights of immigrants and refugees have been rendered weightless, and many of the harms they experience have been stripped of constitutional meaning. Without explanation, laws that detain, uproot, exile, separate families, and return individuals to persecution have been increasingly immunized from Charter review.

In this paper, I ask how this has happened, and why. I argue that the state of the law has its origins in the reasons and logic of the Supreme Court of Canada's 1992 decision in Chiarelli? I will argue that the Chiarelli decision has been expanded, misinterpreted, and reproduced into four propositions that have effectively muted the Charter as a vehicle to constitutionally challenge the state's immigration power. In this vein, the Charters immigration jurisprudence should not be viewed as a series of isolated "bad decisions", but as the " Chiarelli doctrine": a modern Canadian doctrine of constitutional exception. Notably, unlike the plenary power doctrine, which is explicit that immigration is exceptional, the exceptionalism of the Chiarelli doctrine has gone unspoken by the Supreme

Court of Canada. It is a doctrine of technicalities that does not explain or justify why normal constitutional standards are not being applied to the claims of immigrants and refugees.

The next question is why: why has a 19th century doctrine of exception been able to both endure in the United States, and reinvent itself in Canada in the interpretation of a modern constitution? The answer begins with acknowledgment that a degree of "immigration exceptionalism" (10) may be inherent to the liberal state. Liberalism holds a perpetual tension between its belief in universal equality and its commitment to the organization of human life into closed political communities. (11) In a vastly unequal postcolonial world, the application of universal equality to the question of "who gets in" would necessitate the end of closure. There are simply no criteria in liberalism to limit who gets to live in a safe place that protects their basic rights. Given the potentially existential impact of applying a universal equality lens to questions of admission, I argue that courts have constructed these legal doctrines to exempt the border from liberal principles. They signal that the court has entered a sphere where it perceives that right and wrong cannot be determined using its usual set of tools. In the place of liberal norms, the plenary power and Chiarelli doctrines are an assertion of a separate morality for the border: right and wrong is to be determined solely by the interests of those already inside.

This account does not suggest that courts are justified in simply throwing up their hands and abandoning constitutional review over immigration. I conclude the paper by arguing prescriptively that instead of proceeding with the dangerous fiction that non-citizens' human rights do not engage the Charter, there is ample space at the justification stage of a Charter analysis for judges to try in good faith to weigh the competing claims at issue. While this justificatory exercise may be difficult in immigration law, it is far better for it to be attempted transparently in the light, rather than allowing a highly coercive exercise of state power to be carried out unjustified in the dark.

In Part I of this paper, I will outline the plenary power doctrine as a lens to understand recent developments in Canadian constitutional immigration law. In Part II, I will set out the four planks of the Chiarelli doctrine. In Part III, I examine the normative underpinnings of these doctrines of exception. In Part IV, I try to chart a course toward the end of the Chiarelli doctrine.

1. THE PLENARY POWER DOCTRINE

   The plenary power doctrine is immigration exceptionalism at its purest. It states openly and transparently that the principles and values set out in the US constitution stop at the border. Professor Thomas Alexander Aleinikoff describes the doctrine as follows:

   The Court's immigration cases bristle with language that sounds anachronistic to the modern constitutional lawyer: "Congress regularly makes rules [under its immigration power] that would be unacceptable if applied to citizens." "Our cases 'have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'" (12) In this section, I will introduce the American plenary power doctrine, and the decades of critique it has spawned. In doing so, I do not mean to suggest equivalency or a one-to-one comparison with Canadian law. Rather, as Canadian identity often rests on a belief in the moral superiority of Canadian law and government over that of its neighbor, (13) my hope is to raise alarm at how a widely condemned 19th century American legal doctrine has found its way into 21st century Canadian constitutional law.

   THE FOUNDATIONAL CASES

   The US experience with constitutional challenges to its immigration law began in the late 19th century. (14) The early leading cases concern the Chinese Exclusion Act, (15) which sought to drastically limit Chinese immigration to the United States. In the Chinese Exclusion Case, referenced above, Chae Chan Ping, a Chinese immigrant who had been working in California, left the United States after obtaining a certificate authorizing his re-entry. During his time abroad, the law changed and the applicant's re-entry certificate was retroactively invalidated. The applicant brought a claim to the Supreme Court seeking due process in the denial of his readmission. The Supreme Court began its judgment by noting that immigration power is not one of the powers explicitly enumerated in the US Constitution. This insight--that immigration power is "extra-constitutional"--represents the seeds of plenary power doctrine. Immigration is a "plenary"--or "complete"--power that is inherent in sovereignty. As this power was founded outside the constitution, the Court reasoned that immigration power is thus not properly subject to constitutional restraint. (16) Along with this appeal to absolute sovereign power, the Court in the Chinese Exclusion Case offered another justification for declining to review immigration matters: it held that immigration control is a matter of self-preservation. According to the majority judgment, preserving the state's independence and protecting it from foreign aggression, was "the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated." (17) The Court concluded that if Congress "considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security... its determination is conclusive upon the judiciary." (18) In this manner, the foundational plenary power cases see immigration as an invasion, and congressional limits as a matter of national self-defence similar to war power. (19) Four years later in Fong Yue Ting, the Supreme Court expanded this holding beyond admission to the country to the deportation of Chinese immigrants already present. (20) In Fong Yue Ting, the Court reviewed a provision of the Chinese Exclusion Act that detained immigrants who could not produce at least one "credible white witness" to testify to their lawful presence. The Court concluded again that this matter went directly to sovereignty and could not be qualified by the constitution: "The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare". (21)

   Like many constitutional judgments from over a hundred years ago, the foundational plenary power doctrine cases are jarring to the modern reader. There are a number of reasons that one would expect modern constitutional law to abandon these precedents. First, these decisions concern an overtly racist law and their reasoning is rooted in racist sentiments of the time. The opinions issued in Fong Yue Ting include reference to the "obnoxious Chinese.... this distasteful class". (22) These decisions were issued just over twenty years after the end of slavery, and they slightly predate the infamous Plessy v...