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The Unreviewable Executive? National Security and the Limits of Plenary Power

48 Pages Posted: 27 Jul 2017 Last revised: 31 Aug 2017

Shawn Fields

University of San Diego School of Law

Date Written: July 25, 2017

Abstract

This Article explores the weakened foundations of plenary power as a coherent doctrine in immigration, and asserts that a continued if limited role for the doctrine exists in the national security context. With reference to recent litigation over the Trump travel bans, the Article calls for a two-tiered level of review of challenged immigration action: 1) a searching evidentiary inquiry regarding the central motivation behind the action, and 2) a more deferential inquiry into the action's constitutionality when the action was driven primarily by national security interests.

Keywords: Immigration, National Security, Plenary Power, Trump, Constitutional Law

Suggested Citation

Fields, Shawn, The Unreviewable Executive? National Security and the Limits of Plenary Power (July 25, 2017). Tennessee Law Review, Vol. 84, No. 3, 2017; San Diego Legal Studies Paper No. 17-300. Available at SSRN: https://ssrn.com/abstract=3008972

Shawn Fields (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
(619) 260-7959 (Phone)

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