If the dissenters had written Fong Yue Ting, our immigration system would have many more protections for lawful permanent residents. This would pro-mote fairness and increase the legitimacy of our immigration system. Procedurally, immigration cases would be adjudicated by the judiciary, instead of the executive branch. This would remove appellate decisions from the Attorney General’s control and insulate these decisions from an administration’s policy goals. Further, the Fong Yue Ting dissent would provide a right to a jury trial for the severe punishment of deportation. This differs substantially from the current system, but it would reasonably realign immigration consequences and recognize the seriousness of banishment. Finally, the dissent would provide indigent lawful permanent residents facing removal with appointed counsel. This would result in increased appearance rates, a fairer adversarial system, more efficient court proceedings, and less wasteful spending on detention.

The dissent would also open up the possibility for lawful permanent residents to benefit from currently unavailable constitutional protections. The prohibition on ex post facto laws would foreclose deportation law changes being applied retroactively. Non-criminal offenses, such as drug addiction, could not be punished with the consequence of deportation (which is reserved as a criminal punishment). The Eighth Amendment would also allow the judiciary to block minor offenses from resulting in the disproportionate punishment of deportation. Beyond the direct application of Fong Yue Ting, the case would likely have broader influence, establishing similar precedent in exclusion jurisprudence.

It is unclear how our population and politics would have developed along this parallel historical track. Unless there was a strong political backlash against the dissenting justices, the decision would have led to more equitable treatment of immigrants. Hopefully, these legal protections would have prompted communal acceptance of immigrants.

Continue Reading A World Without Fong Yue Ting: Envisioning an Alternative Reality if the Dissenters Prevailed