The Plenary Power Doctrine After September 11

Prior to September 11, 2001, it seemed improbable that Congress would again exercise its plenary power over immigration to exclude immigrants based on race, as it did in the nineteenth century Chinese Exclusion Acts. Earlier, in 2000, Professor Gabriel Chin argued that it was highly unlikely that Congress would ever again use its plenary power over immigration to exclude noncitizens on expressly racial grounds; thus, the Supreme Court was unlikely to ever encounter an opportunity to definitively overturn the doctrine. Given the terrorist attacks of September 11, it is no longer a remote possibility that Congress would consider discrimination in immigration legislation that would be unconstitutional if applied to citizens, but which the plenary power doctrine allows when noncitizens and immigration are at issue. Critics of plenary power seek to overcome the doctrine's vulnerability to politics and events like September 11 by grounding immigration protections in the Constitution. Legal scholars have long advocated the demise of the plenary power doctrine because it separates immigration law from constitutional norms applicable in other substantive areas. This article highlights two particular gaps in the scholarship that help explain plenary power's persistence in U.S. immigration law. First, much of the scholarly criticism of the plenary power doctrine rests on the premise that the Constitution applies in the immigration context. What is missing from the criticism, however, is a careful analysis, grounded in the Constitution itself, that explains what specific constitutional rights exist and how they apply to immigration. I posit that what have been termed constitutional protections - particularly family unity and racial equality, the rights I examine in this article - must be characterized as claims based in international human rights and the natural law that informs it, rather than directly in the U.S. Constitution. Second, in the abundant criticism of the plenary power doctrine, scholars have not articulated in detail what U.S. immigration law could and should look like absent the plenary power doctrine, a particularly critical question after September 11. The criticism usually leaves the details to be worked out by courts as they review immigration laws and administrative decisions. Even where scholars propose critera for excluding individuals from the United States, the criteria are often subject to the same criticism as current immigration law, that they facilitate discrimination against noncitizens in ways that would be constitutionally impermissible if applied to citizens. Finally, I argue that despite the discrimination positive law allows between citizens and noncitizens, there are - even after September 11 - few principled justifications for distinguishing between citizens and noncitizens in the immigration context. Further, attempts to ground exclusion of potential immigrants from the United States in constitutionally defensible principles tend to mask the exercise of power and privilege inherent in that exclusion. Grounding exclusion of noncitizens in the plenary power doctrine at least recognizes that exclusion as an exercise of power.