Scalia’s Short Reply to 125 Years of Plenary Power

With its plenary power doctrine, the Supreme Court erred by rejecting the universal in favor of the particular. Liberal immigration theorists, on the other hand, make the opposite error by rejecting the particular in favor of the universal. Drawing on classic international law publicists and the Catholic philosophical tradition, this essay argues that the two concepts— the state’s greater duty toward its own citizens (the particular) and equal dignity and worth of all human beings (the universal)—go hand in hand: complementing each other and giving the state a qualified right to limit immigration along with a qualified duty to admit vulnerable emigres. Footnote 1 of Justice Scalia’s opinion in Arizona v. United States serves as my point of departure. Scalia says: Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” Scalia mentions what he characterizes as “prudential limitations” on the power to exclude aliens in the context of his argument that Arizona, like the United States, has a right inherent in sovereignty to exclude aliens from its territory “subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” * Gene and Elaine Edwards Chair in Law, University of Oklahoma College of Law. I would like to thank the Oklahoma Law Review for hosting this symposium and my fellow panelists for their insightful comments and engaging dialogue. 1. Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (emphasis added) (quoting 2 SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS bk. III, ch. III, § 10, at 366 (C.H. Oldfather & W.A. Oldfather trans., 1934) (1688)) (Scalia, J., concurring in part and dissenting in part). 2. Id. 3. Id. 120 OKLAHOMA LAW REVIEW [Vol. 68:119 I won’t focus on the merits of Scalia’s argument that individual states within the United States retain sovereign powers to exclude. My interest lies, instead, in his recognition that historically the sovereign power over immigration was limited—not plenary. This narrative, although presented in threadbare fashion in the footnote of a dissenting opinion, offers a corrective to 125 years of misguided sovereign absolutism. The dominant narrative—the one that is the subject of this symposium— is succinctly summed up by the Supreme Court in the 1972 case of Kleindienst v. Mandel: In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case [Chae Chan Ping] held broadly . . . that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers-a power to be exercised exclusively by the political branches of government . . . .” 4. David Martin’s symposium contribution provides an implicit reply. See David A. Martin, Why Immigration’s Plenary Power Doctrine Endures, 68 OKLA. L. REV. 29, 31 (2015) (Chae Chan Ping answered “a federalism question,” establishing “that the federal government in fact does possess the authority to regulate migration”). 5. 408 U.S. 753, 765 (1972) (citations omitted). In his contribution to this symposium, Kevin Johnson makes a forceful argument that, as a legal matter, the dominant narrative is muzzled by statutory and regulatory interpretation, lessening the harshness of plenary power’s full potential. See Kevin R. Johnson, Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism, 68 OKLA. L. REV. 57, 63-64 (2015) (“[T]he Court has, to a large extent, continued to bring U.S. immigration law into the jurisprudential mainstream.”); see also Martin, supra note 4, at 32 (“The litigation picture is not so bleak as often portrayed. Subconstitutional litigation is plentiful, with a significant success rate . . . .”); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L. J. 545, 560 (1990) (“The principal decisions that have contributed to this expansion of judicial review in immigration cases have not been decisions of constitutional immigration law. Instead, they reached results favorable to aliens by interpreting statutes, regulations, or other forms of subconstitutional immigration law.”). My interest lies in the political/cultural effect of this narrative rather than its strictly legal effect. Margaret Taylor and Kit Johnson’s contribution to the symposium, describing the conditions of confinement at Artesia, suggests that the dominant narrative has much purchasing power in shaping the cultural/political debate. Margaret H. Taylor & Kit Johnson, “Vast Hordes . . . Crowding in Upon Us”: The Executive Branch’s Response to Mass Migration and the Legacy of Chae Chan Ping, 68 OKLA. L. REV. 185, 186 (2015) (moving beyond formal legal doctrine to assess the plenary power doctrine’s influence on “the Executive Branch’s policy response to mass migration”). 2015] SCALIA’S REPLY TO 125 YEARS OF PLENARY POWER 121 Since Chae Chan Ping, “[t]he Court without exception has sustained Congress' plenary power” over immigration. Since that time, this misinterpretation of the “ancient principles of international law of the nation-states” has led the Court to “repeatedly emphasize[] that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” The plenary power doctrine was born in 1889 in the Chinese Exclusion Case, Chae Chan Ping v. United States. In concluding that a long-term United States resident, Chae Chan Ping, was excludable from the United States on his return home after visiting China, the Court, quoting Chief Justice Marshall in Schooner Exchange v. McFadden, said: The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. The Court, in Chae Chan Ping, failed to quote or explore the Schooner Court’s limitation of this supposedly “exclusive and absolute” right—“all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in 6. Kleindienst v. Mandel, 408 U.S. 753, 765 (1972). 7. Fiallo v. Bell, 430 U.S. 787, 797 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). 8. Chae Chan Ping v. United States, 130 U.S. 581 (1889). 9. 11 U.S. (7 Cranch) 116, 136 (1812). 10. Chae Chan Ping, 130 U.S. at 604 (emphasis added). My focus is on the Supreme Court’s initial error in concluding that nation-states have an absolute right to exclude under international law. There are, however, at least two other bases for limiting the sovereign power to exclude: one that would have been available to the Court in 1889 and the other of more recent origin. First, the Court did not analyze whether the Constitution itself placed internal as opposed to external restraints on the ability to exclude. For example, does the Constitution’s equal protection norm forbid exclusion based upon race? See Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965, 976-77. Second, more recent cases, including Kleindienst v. Mandel, fail to address the rights revolution in international law over the past several decades, which limits the sovereignty of nation-states in ways that might be relevant to immigration. See id. at 1009-15. 122 OKLAHOMA LAW REVIEW [Vol. 68:119 some instances, be tested by common usage, and by common opinion, growing out of that usage.” Instead, the Chae Chan Ping Court continued: The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.