The Sudden Embrace of Executive Discretion in Immigration Law

29 Pages Posted: 8 Aug 2015 Last revised: 10 Mar 2016

See all articles by Patrick J. Charles

Patrick J. Charles

Government of the United States of America - Air Force

Date Written: August 6, 2015


In recent years, immigration law scholars known for criticizing federal plenary power over immigration are openly embracing it. This includes Hiroshi Motomura, who has not only defended executive discretion over immigration enforcement under a myriad of legal theories, but was also instrumental in influencing President Barack H. Obama’s administration to exercise it. Until recent years Motomura has characterized federal plenary power as nothing more than a constitutional anomaly. In the book Americans in Waiting, Motomura wrote that federal plenary power was in essence “imaginary law,” and even went so far to assert that the legal doctrine was primarily nativist in origin.

Yet today Motomura and other immigration law scholars are embracing federal plenary power, thus begetting the question: what led them to embrace the very legal doctrine they despised for so long? Initially, the embrace of federal plenary power by immigration law scholars was in response to the rapid growth of state and local legislation touching upon immigration. From their perspective, these laws were unconstitutional because they conflicted with the overarching federal immigration scheme, needlessly intruded into United States foreign policy, and encouraged unconstitutional racial profiling. It was additionally asserted that such state and local legislation was unconstitutional under the theory it undermined the executive’s authority to establish immigration priorities and strategies. Herein arose the overarching legal and constitutional justification for President Obama’s immigration program known as Deferred Action for Childhood Arrivals (DACA) — executive discretion of immigration enforcement.

This article explores this sudden transformation — that is how Motomura and other immigration law scholars suddenly embraced federal plenary power. It raises an eyebrow whenever scholars which have criticized a legal doctrine for decades all of a sudden embrace it. As a matter of legal ethics, there is certainly nothing wrong with Motomura and others changing their position to advance the interests of unlawfully present immigrants. In the legal profession it is quite common, and often encouraged, for legal scholars and advocates to tailor or change their position dependent upon the case before them. At the same time, however, this intellectual shift deserves further examination, and this article serves as a history in law intervention of sorts.

Keywords: immigration law, executive discretion, executive power, DACA, DAPA, plenary power doctrine, federal plenary power, history in law

Suggested Citation

Charles, Patrick J., The Sudden Embrace of Executive Discretion in Immigration Law (August 6, 2015). 55 Washburn Law Journal 59 (2015), Available at SSRN:

Patrick J. Charles (Contact Author)

Government of the United States of America - Air Force ( email )

Washington, DC
United States

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