14 Geo. Immigr. L.J. 257 (1999-2000)
Is There a Plenary Power Doctrine - A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law

handle is hein.journals/geoimlj14 and id is 267 raw text is: IS THERE A PLENARY POWER DOCTRINE?
A TENTATIVE APOLOGY AND PREDICTION
FOR OUR STRANGE BUT UNEXCEPTIONAL
CONSTITUTIONAL IMMIGRATION LAW
GABRIEL J. CHIN*
I. INTRODUCTION
This essay is an effort to predict what the Supreme Court will do with
constitutional immigration law, focusing in particular on substantive
categories of aliens who are not allowed to enter or remain in the United
States. The Court's record in this context consists of a string of cases, over a
century long, upholding with depressing regularity statutes discriminating on
the basis of race, sexual orientation, political activity, and sex and birth
out-of-wedlock.1 These decisions, and the statutes they upheld, are inconsis-
tent with fundamental values reflected in domestic constitutional law, yet
they continue to constitute the foundation of immigration law. Based on this
body of jurisprudence, professors and jurists have frequently suggested that
the Supreme Court's treatment of constitutional immigration claims is
inconsistent with domestic constitutional law.2 This is true at least to some
degree, and there is no question that many of the decisions purport to rely on
a distinct frame of analysis, called the plenary power doctrine, the idea
that congressional immigration classifications are immune from judicial
review. This essay suggests that there may be a partial alternative explana-
tion: that the Court's treatment of substantive immigration classifications,
that is, grounds for exclusion and deportation, may not be that different from
how it has treated those groups domestically. It also suggests that because of
congressional responsiveness to changing social values and for other reasons, it
may be that the Court will never be presented with a strong case to test this thesis.
* Professor of Law, University of Cincinnati College of Law. B.A., Wesleyan University; J.D.,
Michigan Law School; LL.M., Yale Law School. E-mail: gchin@aya.yale.edu. I benefited in the
preparation of this paper from reading STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND
POLICY (2d ed. 1997), unquestionably the finest casebook in the area, and T. ALEXANDER ALEINIKOFF,
DAVID A. MARTIN & HIROSHI MOTOMURA, IMMIGRATION AND CITIZENSHIP, PROCESS AND POLICY (4th ed.
1998), a text correctly regarded as the most outstanding in the field. Special thanks to Steve Legomsky and
Kevin Johnson for the opportunity to revise this essay with the benefit of their perceptive and helpful
written comments, to Alex Aleinikoff, James Hathaway, David Martin, Nancy Morawetz, David Moss, Vic
Romero, Peter Spiro, Scott Wells, Frank Wu, and to Shazneen Rabadi and the other editors of the
Georgetown Immigration Law Journal. Copyright  2000 Gabriel J. Chin.
1. See Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional
Law of Immigration, 46 UCLA L. REV. 1, 6-7 (1998) (citing numerous cases), reprinted in 19 IMMIGR. &
NATIONALITY L. REV. 1 (1999).
2. See id. at 6-8 & nn.31-36, 53 & n.250 (citing numerous scholarly articles).

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