Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law
32 Pages Posted: 23 Mar 2011
Date Written: March 17, 2000
The Supreme Court has held that Congress may create classifications and procedures in immigration law that would be unacceptable as applied to citizens under domestic law. Scholars agree that under the so-called plenary power doctrine Congress has discriminated in immigration policy on grounds that would be unconstitutional in other contexts. This essay acknowledges that U.S. immigration policy has been aggressively discriminatory, and remains so to some extent, and that the immigration jurisprudence as reflected by Supreme Court opinions is littered with decisions upholding discrimination on the basis of sex, race, political belief and out of wedlock birth, grounds that are generally proscribed as to domestic laws. Nevertheless, it proposes that immigration law may be less anomalous than is commonly thought.
Many of the decisions upholding invidious discrimination in immigration were rendered when the Supreme Court allowed discrimination on those grounds in domestic laws, applicable to citizens. More modern decisions, though permitting discrimination on grounds which were generally prohibited, were consistent with the vestiges of distinctions allowed by the Court. (For example, laws treating out of wedlock fathers differently from out of wedlock mothers for immigration purposes could draw some support from Supreme Court cases allowing different standards for termination of parental rights for mothers and fathers). Further, Congress has preempted the best constitutional challenges by changing discriminatory laws as domestic constitutional law changed. For example, it eliminated racial bars to naturalization in 1952, two years ahead of Brown, and racial restrictions on immigration in 1965, two years ahead of Loving v. Virginia. Accordingly, there are few examples where the Supreme Court has cleanly upheld immigration discrimination on grounds which would be clearly impermissible under domestic constitutional law.
There are two responses to this essay: Kevin R. Johnson, Race and Immigration Law and Enforcement: A Response to Is There A Plenary Power Doctrine?, 14 GEORGETOWN IMMIGRATION LAW JOURNAL 289 (2000) and Stephen H. Legomsky, Immigration Exceptionalism: Commentary On Is There A Plenary Power Doctrine?, 14 GEORGETOWN IMMIGRATION LAW JOURNAL 307 (2000).
Keywords: immigration, constitutional law, discrimination, legal history, plenary power doctrine
JEL Classification: K4
Suggested Citation: Suggested Citation