Friday, October 30, 2015
Abstract: This article originated as part of a symposium at the University of Oklahoma College of Law held on the occasion of the 125th anniversary of the Supreme Court’s decision in Chae Chan Ping v. United States, often called The Chinese Exclusion Case. Immigration law’s plenary power doctrine, traditionally traced to that decision, has persisted despite a steady and vigorous stream of scholarly criticism; its vitality is reflected in the Court’s 2015 decision in Kerry v. Din. This essay undertakes to explain why.
Contrary to some accounts, the Court’s strong deference to the political branches does not derive from the concept of sovereignty. Justice Field’s opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem – structural reasoning that locates the immigration control power squarely in the federal government rather than the states, even though that power is not explicitly enumerated in the Constitution. In any event, that a power is labeled sovereign does not necessarily entail that it lies beyond judicial review or deserves extraordinary deference.
The Chae Chan Ping Court’s deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. This essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a complex and uncertain global context, where many powers and enforcement tools taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine out of concern that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on policy analysis and advocacy addressed to the political branches, forums where constitutional values can be pursued and successfully – if unevenly – vindicated, as Justice Field recognized.