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14 Geo. Immigr. L.J. 289 (1999-2000)
Race and Immigration Law and Enforcement: A Response to Is There a Plenary Power Doctrine

handle is hein.journals/geoimlj14 and id is 299 raw text is: RACE AND IMMIGRATION LAW AND
ENFORCEMENT: A RESPONSE TO
IS THERE A PLENARY POWER DOCTRINE?
KEviN R. JOHNSON*
I. INTRODUCTION
Professor Jack Chin has written a provocative paper that, as is characteris-
tic of his work, has much to commend to it.' His basic thesis is that the gulf
between the constitutional law of immigration and that which applies to
citizens is not as great as is frequently           stated.: To    support this novel
argument, he takes on the ambitious task of comparing the constitutional law
scrutinizing discrimination against citizens based on race, sexual orientation,
political activity, gender, and legitimacy with the treatment of similar
classifications in the immigration laws at various times in U.S. history. As the
paper documents, the plenary power doctrine, which shields substantive
judgments in the immigration laws from judicial review, emerged and
flourished in the nineteenth century when the courts rarely invalidated
governmental classifications now considered to be suspect or quasi-suspect.3
* Associate Dean for Academic Affairs and Professor of Law, University of California at Davis
School of Law. A.B., University of California at Berkeley; J.D., Harvard University. These comments
were prepared for the Workshop on the Supreme Court and Immigration and Refugee Law at Georgetown
University Law Center in October 1999. I thank Alex Aleinikoff for inviting me to participate in the
workshop and Nadia Yakoob, Editor in Chief of the Georgetown Immigration Law Journal, for her fine
organizing efforts. Comments of co-panelists Steve Legomsky and Peter Spiro helped my thinking on this
paper. Leti Volpp, George A. Martfnez, and Michael Scaperlanda offered helpful comments on a draft of
this essay. I appreciate the opportunity provided by Jack Chin to comment on his paper as well as his
willingness to consider my criticisms with an open mind.
1. See Gabriel J. Chin, Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for
Our Strange But Unexceptional Constitutional Immigration Law, 14 GEO. IMMIGP, L.J. 257 (2000)
[hereinafter Chin, A Tentative Apology]. Currently editor of the LMMIGRATION & NATIONALITY REVIEW,
Professor Chin has written a number of immigration, and immigration-related, articles including, but not
limited to, Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional
Law of Immigration, 46 UCLA L. REV. 1 (1998) [hereinafter Chin, Segregation's Last Stronghold];
Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration
and Nationality Act of 1965, 75 N.C. L. REv. 273 (1996) [hereinafter Chin, Civil Rights Revolution];
Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IowA L. REV. 151 (1996).
2. See, e.g., Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (In the exercise of its broad power over
naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to
citizens.); Peter J. Spiro, Learning to Live with Immigration Federalism, 29 CONN. L. REV. 1627, 1629
(1997) (Official conduct that would never be tolerated against an ordinary backdrop-including, for
instance, classifications based on nationality and legitimacy, the use of undisclosed information as
decision-making evidence, and adverse status implications arising from the assertion of core first
amendment rights has repeatedly survived constitutional challenge [in immigration law].) (citations
omitted); see also infra note 5 (collecting authorities criticizing plenary power doctrine).
3. There are exceptions to this general rule, however. Compare Yick Wo v. Hopkins, 118 U.S. 356
(1886) (finding unconstitutional the selective enforcement of a law against Chinese business owners), with

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