Morales-Santana and the Plenary Power Doctrine

by Rachel Rosenbloom, Professor, Northeastern University School of Law, guest contributor

The Supreme Court’s decision in Sessions v. Morales-Santana  has caught the attention of immigration law scholars as a rare instance in which the Court has decided a case involving the Immigration and Nationality Act (INA) on constitutional grounds.

The Supreme Court is notoriously squeamish about striking down immigration statutes on constitutional grounds. This aversion has been evident since the Court decided its very first immigration cases in the late nineteenth century, upholding various aspects of the Chinese Exclusion laws – including one provision that required Chinese immigrants to prove the duration of their residency by the testimony of a “credible white witness” -- and thus establishing what has come to be known as the Plenary Power Doctrine.  As the Court has often repeated throughout the intervening years, “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”  Zadvydas v. Davis, a 2001 case in which the Court held that the government may not detain immigrants indefinitely without performing periodic custody reviews, represents the high water mark of the Court’s constitutional jurisprudence within the area of immigration law.  Even in that case, however, the Court did not actually strike down the detention statute on constitutional grounds but rather bent over backward to read a (non-existent) custody review requirement into the statute, citing the doctrine of constitutional avoidance.

In light of this history, it is refreshing to see the Court in Morales-Santana declare unequivocally that the gender-based distinction in the laws governing transmission of citizenship to a child born abroad – imposing an easier standard for those born to unwed U.S.-citizen mothers than for those born to unwed U.S.-citizen fathers –  “is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” The clarity and directness of this ruling has prompted some to speculate that the Plenary Power Doctrine may be dead. 

But to paraphrase Mark Twain, reports of the death of the Plenary Power Doctrine are greatly exaggerated. There are no indications that the case will have broad implications regarding the application of the immigration laws to noncitizens. Justice Ginsberg is careful to distinguish Morales-Santana’s claim from that at issue in Fiallo v. Bell, a 1977 case involving another gender-based distinction (again drawing a line between unwed mothers and unwed fathers) in the statute governing petitions for immigrant visas for children of U.S. citizens.  In Fiallo, the Court applied a very lax standard of review (Justice Ginsburg refers to it as rational basis, but it was arguably even less searching than that), citing Congress’ “exceptionally broad power” with regard to the admission or exclusion of noncitizens.  Justice Ginsburg distinguishes Morales-Santana as a case involving citizenship rather than the admission of immigrants, thus greatly limiting the scope of the decision.  

Although Morales-Santana might not signal a huge shift on plenary power, it does contain one significant new development. The Court had previously, in Nguyen v. INS, ducked the question of which standard of review to apply to an equal protection claim involving gender-based distinctions in the citizenship laws, holding that the provision at issue in that case would survive under intermediate scrutiny and that “[g]iven that determination, we need not decide whether some lesser degree of scrutiny pertains because the statute implicates Congress' immigration and naturalization power.” In Morales-Santana, in contrast, Justice Ginsburg (a dissenter in Nguyen) leaves no doubt that at least in cases involving citizenship, the Court will apply a more stringent standard of review.

Editors' Note:  This is one of a series of blogs analyzing the decision in Sessions v. Morales-Santana from a range of perspectives. Other entries in the series can be found here, here ,here and here.