The Trouble with Treaties: Immigration and Judicial Review

53 Pages Posted: 21 Apr 2012

See all articles by Angela M. Banks

Angela M. Banks

Sandra Day O'Connor College of Law, Arizona State University

Date Written: November , 2010


Human rights activists describe United States deportation law and policy as draconian and unjust. Activists and everyday Americans are outraged that long-term lawful residents in the United States are being deported for minor criminal convictions. Often this criminal activity took place decades ago and did not constitute a deportable offense at the time. One might ask where are the courts and the Constitution. Why don’t the courts invalidate such deportations on the basis of well-established constitutional guarantees such as proportionality, family privacy, or protection against ex post facto laws? The primary answer resides in the Supreme Court’s plenary power doctrine. Consequently human rights activists and international law scholars have called for judges to review challenges to deportation decisions based on human rights treaty obligations. They do so in the hope that greater judicial enforcement of U.S. human rights treaty obligations will create a more robust judicial role in monitoring deportation decisions and undermine the strength and legitimacy of the plenary power doctrine. Although the position of human rights activists has surface appeal, I believe that it is fundamentally misguided because it fails to recognize the critical role that principles of judicial treaty enforcement played in the historical development of the plenary power doctrine.

From the beginning of the republic through the mid-nineteenth century the federal government used treaties to regulate immigration. Part I of the Article shows that federal courts were highly reluctant to hold Congress or executive official accountable for treaty breaches. From this examination we can see that principles of treaty enforcement are not likely to inhibit the plenary power doctrine because they actually informed the very development of that doctrine. In Part II I show that those who believe that treaties can provide an effective basis for restricting the United States’ immigration power ignore significant challenges relating both to the status of the relevant treaties as well as the Court’s historical reluctance of enforce U.S. treaty obligations in the face of conflicting or contradictory federal action. The very real obstacles that I identify in Part II could be ameliorated, as I discuss, but that leads me in Part III to explore the most formidable hurdles to the effective use of treaties to create structures of judicial monitoring: the problems of indeterminacy and framing.

Keywords: immigration, judicial review, treaties, international human rights

Suggested Citation

Banks, Angela M, The Trouble with Treaties: Immigration and Judicial Review (November , 2010). St. John's Law Review , Vol. 84, No. 4, 2010, Available at SSRN:

Angela M Banks (Contact Author)

Sandra Day O'Connor College of Law, Arizona State University ( email )

Mail Code 9520
111 E. Taylor Street
Phoenix, AZ 85004-4467
United States


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