Law on Trump’s Side in Immigration Row Likely to Fall

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Kimberly Strawbridge Robinson and Bernard Pazanowski

A long-standing constitutional doctrine that may support broad authority for President Donald Trump’s contentious immigration executive order seems primed to fall.

Trump’s Jan. 27 executive order bars refugees from coming to the U.S. for 120 days, and indefinitely bars refugees from Syria. It also prohibits the entry of nationals from seven predominately Muslim countries for 90 days.

Multiple lawsuits have been filed against the administration, and the order has been temporarily stayed nationwide by a federal judge in Washington. Tonight, the U.S. Court of Appeals for the Ninth Circuit will review that order. Even with the Ninth Circuit’s imminent ruling on this preliminary issue, it could be months before courts sort out the legality of the travel ban.

Among other statutory and constitutional arguments, the government is likely to point to the “plenary power doctrine” to say that the courts shouldn’t get involved in the contentious dispute, Kevin R. Johnson, the Dean of the University of California, Davis, School of Law, Davis, Calif., told Bloomberg BNA. That doctrine says that the political branches of government have sole power over immigration matters, and that the judiciary should stay out of immigration.

The doctrine has a long history, with its roots in an 1889 U.S. Supreme Court case, Chae Chan Ping v. United States, 130 U.S. 581 (U.S. 1889).

Although that case—often called the Chinese Exclusion Act case—has never been explicitly overruled by the Supreme Court, the plenary power doctrine has been under attack for over 50 years, according to William A. Stock, President of the American Immigration Lawyers Association.

As the Trump administration points to the waning doctrine to support its immigration EO, two cases before the Supreme Court this term could weaken the doctrine even more.

Courts Sidelined

The plenary power doctrine grew out of the Chinese Exclusion Act of 1888, which prohibited Chinese laborers from immigrating to the U.S.

In upholding the act, the Supreme Court said that immigration matters are committed to the legislature, not the judiciary.

If Congress “considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security,” that “determination is conclusive upon the judiciary,” the court said.

The idea has since been broadened to require judicial deference to the executive in immigration matters too, constitutional law professor John Eastman, of Chapman University’s Dale E. Fowler School of Law, Orange, Calif., told Bloomberg BNA.

Cracks in Doctrine

But cracks have developed in the plenary power since the Chinese Exclusion Act case was decided, Johnson said.

There’s been a “constitutional revolution” in the past century, he said.

No judicial review of immigration matters might have been acceptable in 1889, when parts of the Constitution were essentially “toothless,” Johnson said. But now the courts are much more uneasy about sitting on the sidelines in such cases, he said.

Johnson pointed to Kerry v. Din, 83 U.S.L.W. 4417, 2015 BL 187890 (U.S. June 15, 2015), as an example.

There, the high court narrowly rejected a U.S. citizen’s bid to get more information on why the government had denied her husband a visa.

The government argued, among other things, that the court should defer to the executive under the plenary power doctrine.

Though the court was divided as to why no more information was needed, six justices agreed that the court should at least take a look at the government’s reasoning, Johnson said.

This Term

Moreover, two cases currently before the court could cut back on the plenary power doctrine even more.

In Boente v. Morales-Santana, No. 15-1191, an individual claims that immigration laws unconstitutionally discriminate on the basis of sex.

In Jennings v. Rodriguez, No. 15-1204, a group of immigrants claim that the government violated their due process rights by refusing to give them bond hearings.

In both cases, the federal government pointed to the plenary power doctrine as a reason to uphold the law or policy.

The “longstanding rule” is that the political branches “have plenary control over which aliens may physically enter the United States and under what circumstances,” the federal government said in its brief in Jennings.

Under this broad authority, “Congress regularly makes rules that would be unacceptable if applied to citizens,” the government said.

The courts should be highly deferential to the political branches in immigration matters, it said.

But during oral argument in both Morales-Santana and Jennings, the justices seemed to have little appetite to wholly defer to the other branches under the plenary power doctrine.

In fact, far from refraining to consider whether there was a constitutional violation in Morales-Santana, the justices seemed only to divide over what the appropriate remedy for that constitutional violation might be.

Easily Overcome

However, when the Supreme Court does squarely address the continuing validity of the plenary power doctrine, which it certainly will have to at some point soon, its unlikely to overrule the Chinese Exclusion Act case’s basic holding “that Congress has broad authority over who can immigrate to the U.S.,” Polly J. Price, of Emory University School of Law, Atlanta, told Bloomberg BNA.

Instead, the court is likely to find that subsequent cases have limited the plenary power doctrine’s broad application, such that blanket religion-based or national origin-based bans are unconstitutional, Price said.

Of course, plaintiffs challenging the EO would then have to show that it is in fact a religion-based or national origin-based ban. The challenge to the plenary power doctrine is one of many hurdles for plaintiffs to successfully stop Trump’s order.

But the plenary power doctrine’s days may be numbered in its current form. This is the kind of case that might prompt the Supreme Court to “defang” the plenary power doctrine, Johnson told Bloomberg BNA in 2016.

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com and Bernard Pazanowski in Washington at BPazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

A podcast on immigration law's evolution over the plenary power doctrine is available at http://src.bna.com/lVO.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try United States Law Week