Explaining the End of Plenary Power

Abstract:     
Under the moniker of the plenary power doctrine, courts have long hewed to an exceptional regime of deference to political branch conduct as against constitutional challenges to federal immigration law. The Supreme Court's recent decisions in Nguyen and Zadvydas, however, point the way to the doctrine's demise. Although Nguyen upheld a provision of the Nationality Act discriminating on the basis of gender, it did so by ostensible application of the normal rules of equal protection. In Zadvydas, the Court cast serious constitutional doubt on the indefinite detention of removable aliens, also applying non-exceptional tests for civil commitment and affording the executive branch little deference beyond that demanded in other agency contexts.

This essay seeks to explain the possible abandonment of plenary powers by situating the doctrine in an international context. It first rejects other possible causes of the retreat, including accounts that highlight the Court's efforts in other contexts to assert judicial supremacy in constitutional interpretation. The essay then traces the origins of plenary powers to a world in which immigration implicated unstable relations among states, in which foreign relations dynamic the courts played little or no role. In recent years, however, the risks of judicial participation in global policy has been diminished. As those risks have diminished, baseline constitutional values should be restored to the area. The essay concludes that the September 11 attacks, although posing a challenge to vigorous participation of the courts in immigration law, will not necessarily interrupt the trajectory set by Nguyen and Zadvydas.

Number of Pages in PDF File: 28

working papers series