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34 Fla. St. U. L. Rev. 363 (2006-2007)
Canons, the Plenary Power Doctrine, and Immigration Law

handle is hein.journals/flsulr34 and id is 371 raw text is: CANONS, THE PLENARY POWER DOCTRINE, AND IMMIGRATION LAW BRIAN G. SLOCUM* ABSTRACT There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has plenary power over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statu- tory construction aggressively to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively fo- cused on the plenary power doctrine. They have either ignored the im- portant role played by canons in immigration law or have viewed canons as serving only the temporary and marginally legitimate role of substitutes for the constitutional rights not afforded aliens. In this Article, I defend canons and argue that they should be viewed as hav- ing a permanent and legitimate role in interpreting immigration pro- visions, even in cases where no constitutional issues are raised. I ex- plain that part of the function of some canons is to require courts to often adopt second-best interpretations of statutes. Contrary to the claims of some scholars, these second-best interpretations do not add unpredictability to the law. While I defend the canons that courts have chosen to apply in immigration cases on normative grounds, the Court's recent application of the canon of constitutional avoidance presents new concerns. The Court has recently transformed the canon, which requires courts to avoid serious constitutional issues through statutory interpretations, into a device that often gives aliens as a whole greater rights, at least temporarily, than would a decision that rested on constitutional grounds. The expansion of the canon of con- stitutional avoidance means that courts should be particularly careful when applying it to avoid unnecessarily disrupting Congress's legisla- tive designs. I. INTRODU CTION .................................................................................................. 364 II. THE PERMANENT STATUS OF CANONS OF STATUTORY CONSTRUCTION IN IM M IGRATION LAW ............................................................................................ 369 A. Canons that Promote Non-Constitutional Interests ................................... 372 1. The Immigration Rule of Lenity .......................................................... 372 * Assistant Professor of Law, Florida Coastal School of Law. J.D., Harvard Law School, 1999. The author would like to thank Steve Calandrillo, Brian Foley, Ernesto Her- nandez-Lopez, Stephen Legomksy, Jeff McFarland, Nancy Morawetz, Chris Roederer Vic- tor Romero, Bradley Shannon, David Shapiro, Ted Sichelman, and Juliet Stumpf for their valuable comments on an earlier draft of this Article. The author would like to especially acknowledge and thank Hiroshi Motomura for his guidance, comments, and willingness to discuss the issues addressed in this Article. The author would also like to thank Jennifer and Gavin Slocum for their extraordinary understanding and patience.

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