Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis
![handle is hein.journals/geoimlj16 and id is 375 raw text is: DETAINING PLENARY POWER: THE MEANING
AND IMPACT OF ZADVYDAS V DAVIS
T. ALEXANDER ALEINIKOFF*
Is the plenary power doctrine dead?
Under Section 241(a)(6) of the Immigration and Nationality Act, added
to the code in 1996, the Attorney General is authorized to detain a
non-citizen subject to a final order of removal from the United States.' If
removal cannot be effected within ninety days after the entry of a final
order, certain classes of non-citizens - those who have not been lawfully
admitted, have violated conditions imposed at entry, have been convicted
of criminal offenses, are removable on foreign policy or security grounds,
and those whom the Attorney General has determined to be a risk to
the community or unlikely to comply with the order of removal - may
be held longer.2 If, as is sometimes the case, the Immigration and
Naturalization Service (INS) is unable to remove a non-citizen because
his or her state of origin is unwilling to permit return or because he or
she has no state to which to return, the detention of the non-citizen
may become indefinite. In cases challenging the indefinite detention of
removable non-citizens, the government asserted that the subject matter
of the federal regulation - immigration - called for an extremely
limited and deferential role for the courts. It cited precedents ranging
over more than a century in support for this so-called plenary power
doctrine.,3
* Thanks to Linda Bosniak, Michael Churgin, Hiroshi Motomura, David Martin, Michelle
Pistone, Mark Tushnet, Judy Rabinovitz, and the participants at the Georgetown University Law
Center's Second Biennial Conference on the Supreme Court and Immigration Law for helping me
think through the issues discussed in this paper. I would also like to acknowledge the important
research assistance provided by Erum Mirza and the Georgetown Immigration Law Journal.
1. Immigration and Nationality Act (INA) § 241(a)(6), 8 U.S.C. § 1231(a)(6) (2000).
2. Id. The provision provides in relevant part:
An alien ordered removed under section 212 [of the INA], removable under section
237(a)(1)(C) [violation of non-immigrant status or conditions of entry], 237(a)(2) [criminal
offenses], or 237(a)(4) [security and foreign policy grounds] or who has been determined by
the Attorney General to be a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period [i.e., 90 days following the entry of final
order of removal], and if released, shall be subject to the terms of supervision in paragraph (3).
Id.
3. Reno v. Flores, 507 U.S. 292 (1993); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206
(1953); Reno v. Kim Ho Ma Brief for the Petitioners at 43, Zadvydas v. Davis, 121 S. Ct. 2491 (2001)
(No. 00-38) (citing Chae Chan Ping v. United States, 130 U.S. 581 (1889)); see Stephen H.
Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. CT. REV.](ViewImageLocal?handle=hein.journals/geoimlj16&div=24&collection=&method=preview&ext=.png&size=3)
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Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis
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