The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective
Patrick J. Charles
Government of the United States of America - Air Force
December 21, 2010
Texas Review of Law & Politics, Vol. 15, p. 61, 2010
For over a century it has been repeatedly but unsuccessfully argued that the First Amendment in the Constitution limits the federal government’s plenary power to exclude or expel aliens from the United States. Such arguments have persisted despite the Supreme Court having repeatedly determined that the First Amendment does not restrict such power. Instead, the Court has upheld the federal government’s plenary power to “forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory” regardless of whether its justification is based upon ideological or association grounds.
Numerous commentators, scholars, and attorneys have attacked this rationale by arguing that the Bill of Rights limits the federal government’s power to exclude or expel aliens. For instance, Karen Engle criticizes ideological and association exclusion on the ground that it is impossible to separate bad aliens from good aliens on such grounds. She believes that the United States’ power to “determine immigration policy does not mean that all state actions regarding immigration [should] necessarily go unchallenged.” Berta Esperanza Hernandez-Truyol believes ideological exclusion not only violates the First Amendment, but also a “myriad [of] human rights violations…[including] racial, religious, ethnic, and national discrimination, as well as the discrimination in the applications and enjoyment of the rights to free speech and association.” Meanwhile, academics such as Steven R. Shapiro have argued that ideological and association exclusions “abridge” the “constitutional rights of American citizens[.]” He writes that “ideological exclusions cannot be justified” in the United States because the “popular will” is against such exclusions.
Commentators, such as these, often place the blame of ideological and association exclusions on the Supreme Court’s dicta in the Chinese Exclusion Case. It is frequently argued that the Court “formulated the plenary power doctrine” out of thin air without any supporting constitutional authority. Most recently, Matthew J. Lindsay wrote an extensive piece asserting that the Plenary Power Doctrine was “borne” in the late nineteenth century as “an urgent sense of national peril[.]” Academic scholar Peter J. Spiro describes the Plenary Power Doctrine as “a rights-subverting constitutional anomaly” which has “long been relegated to a sort of constitutional hall of shame.” Meanwhile, Stephen Legomsky argues that the courts have based too much reliance upon early case precedent such as the Chinese Exclusion Case and its nineteenth century predecessors. Legomsky asserts that the holdings and rationales for these cases provide no support for the plenary power doctrine.
What all these commentators fail to address, however, is the legal and historical precedent supporting the Plenary Power Doctrine. Not one of these commentators attempts to delve into the Anglo-American tradition or the early treatises on international law by which the Plenary Power Doctrine was derived. Instead, they attack the Plenary Power Doctrine by asserting that the First Amendment prevents the federal government from conditioning entry or settlement on ideological grounds - all the while without having a firm historical or contextual grasp on the subject. Granted, one may argue that ideological exclusions are morally repugnant to the people that view this nation as being founded on liberty for all.
However, the Plenary Power Doctrine is firmly rooted in the Anglo-American legal tradition. It should be stressed that the determination to expel or exclude foreigners, whether they have already lawfully settled or even begun the process of naturalization, is a political question and not a vested right absent congressional statutory acquiescence. The argument of moral repugnancy does not make exclusions based on association or ideological grounds unconstitutional. It is an issue that can only be placed into this nation’s political discourse where it has always and rightfully been.
Similar to other constitutional political questions, one must separate their personal political beliefs from the law and history. Just as it may be argued that it is unconstitutional to exclude based upon ideological association, the same argument can be made for aliens do not have sufficient property, are not properly educated, or have dangerous communicable diseases. Nevertheless, we exclude individuals based upon all these factors. Furthermore it may be argued that excluding those convicted of crimes should not be excluded, for it violates their right to due process. This begets the question, “Which factors are excludable and who is to determine them?” The answer is simple; the factors are to be determined by this nation’s elected federal representatives, including the President.
The purpose of this study is to correct the century-old assertion that the plenary power to expel or exclude aliens is subject to any limitations, except the powers delegated between the legislative and executive branches by the Constitution. In particular this article sets forth the well-established, and often forgotten, doctrine of allegiance, the Anglo-American legal precedent for ideological exclusion and expulsion, the inherent authority of nations as understood by early international law commentators, how the Founding Fathers understood these doctrines, and the reasons this power resides with the federal government. The evidence demonstrates that ideological exclusion and expulsion are constitutionally permissible and are political questions to be determined by the people through their federal representatives.
Number of Pages in PDF File: 66
Keywords: Plenary Power, Aliens, Ideological Exclusion, First Amendment, Mandel, Expulsion, Exclusion, DeportationAccepted Paper Series
Date posted: June 1, 2010 ; Last revised: January 23, 2011
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