Friday, June 16, 2017
The Trump administration's aggressive immigration enforcement initiatives have attracted much attention and critical commentary. One can only wonder what long term impact those initiatives will have on immigration law. I have a perhaps counterintuitive thesis, which I am exploring in an article in progress.
As we all know, U.S. history is marred by extremes in the immigration laws. In no small part, this directly results from the limited scope of constitutional rights of immigrants recognized by the Supreme Court. Historically, under the “plenary power doctrine,” Congress has been said to possess unreviewable authority over immigration, with the Court regularly emphasizing that noncitizens outside the United States have few, if any, rights to enter the country.
However, “immigration exceptionalism” marked by the constitutional immunity of the U.S. immigration laws has grown considerably more complicated and nuanced than it once was. (For a sophisticated analysis of contemporary immigration exceptionalism, see David S. Rubenstein & Pratheepan Gulasekaram, Immigration Exceptionalism, 111 Nw. U.L. Rev. 553 (2017)). For example, noncitizens, especially those with deep ties to the country, inside the United States have experienced the steady expansion over time of rights, especially to procedural due process. Moreover, the Supreme Court has expanded the rights of “criminal aliens,” a most unsympathetic group. See Padilla v. Kentucky, 599 U.S. 356 (2010) (holding that the right to effective assistance of counsel includes the receipt of accurate advice by immigrants of the immigration consequences of criminal convictions).
Over the last fifty years, although stopping short of eliminating the plenary power doctrine, the Supreme Court has incrementally moved away from a regime of no judicial review. It instead has steadily headed toward a more normal immigration jurisprudence, including routine judicial review of the application of the U.S. immigration laws and the Executive Branch’s immigration policy decisions. That trajectory is exemplified by (1) the use of ordinary methods of statutory interpretation in construing and applying the immigration statute; and (2) adherence to regular administrative deference doctrines in the review of the Executive Branch’s immigration decisions. See generally Kevin R. Johnson, Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism, 68 Okla. L. Rev. 57 (2015) (analyzing recent evolution of Supreme Court immigration jurisprudence). Moreover, studiously avoiding the invocation of the plenary power doctrine, the Court on a number of occasions has applied standard constitutional avoidance doctrines and eluded results starkly out of synch with modern constitutional jurisprudence. See, e.g., INS v. St. Cyr, 533 U.S. 289, 298 (2001) (acknowledging the “strong presumption in favor or a judicial review of administrative action” that requires “a clear statement of congressional intent to repeal habeas [corpus] jurisdiction” to review a removal order); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) (holding that, because Congress had not made a clear statement barring judicial review of immigration class actions, the Court would in a class action review the lawfulness of the implementation of a program created under the Immigration Reform and Control Act of 1986). The Supreme Court also has required judicial review of removal orders in the face of apparent congressional attempts to restrict, and arguably eliminate, any judicial review. See, e.g., Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001). Ensuring judicial review of immigration decisions can best be understood as an effort by the Court to avoid invoking the plenary power doctrine with its harsh outcomes that are in tension with modern constitutional law. This pattern of constitutional avoidance implicitly recognizes that noncitizens in fact possess constitutional rights.
Commentators have observed the slow movement of immigration law toward the mainstream of constitutional law. The persistent criticism of the plenary power doctrine has encouraged its erosion. In two cases in the last few years, the Supreme Court has implicitly expanded the rights of noncitizens, including those seeking admission into the United States. In Kerry v. Din, 135 S. Ct. 2128 (2015), for example, six Justices found that a State Department consular officer's denial of a visa to a noncitizen seeking admission into the United States was subject to rationality review, thus retreating from the doctrine of consular non-reviewability that historically immunized those decisions from any judicial review. Similarly, in Sessions v. Santana-Morales, 136 S. Ct. __ (2017), the Court applied the Equal Protection guarantee to gender classifications in the citizenship laws.
The Supreme Court has decided a steady stream of immigration cases in recent years. In the 2016 Term, the Court had an array of immigration cases on the docket, including some that squarely raise constitutional issues. If the Court adheres to the trend of its recent cases, the decisions may move the nation toward a more unexceptional body of immigration law that is more faithful to mainstream American constitutional jurisprudence.
President Trump’s spate of immigration enforcement measures, including the travel ban, expanded expedited removal, and mandatory detention without bond, push the envelope of contemporary constitutional norms, virtually daring the courts to address their constitutionality. By consistently taking brash immigration policy measures that test constitutional limits, the Trump administration may ultimately force the Supreme Court to squarely reconsider the plenary power doctrine. Such a remarkable development ultimately may be a counterintuitive — and at least in some quarters welcome — result of the Trump administration’s unforgiving immigration enforcement measures. See Erin Delaney, Immigration in the Age of Trump, U. Ill. Law Rev. Online (Apr. 2017) (suggesting that the extreme nature of President Trump’s immigration positions might result in courts revisiting the plenary power doctrine).