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23 N.Y.U. J. Int'l L. & Pol. 35 (1990-1991)
Immigration and Judicial Review in the Federal Republic of Germany

handle is hein.journals/nyuilp23 and id is 47 raw text is: IMMIGRATION AND JUDICIAL REVIEW IN THE
FEDERAL REPUBLIC OF GERMANY
GERALD L. NEUNMAN*
In recent years, scholars have repeatedly questioned
prevailing American constitutional doctrines concerning im-
migration and the rights of aliens, stressing the anomalous
character of these doctrines within modem American consti-
tutional practice.' This anomaly arises on two levels: the
plane of constitutional principle and the plane ofjudical re-
view. In some instances, the Supreme Court has maintained
that certain exercises of federal power over aliens have no
constitutional limitation.2 In other instances, without resolv-
ing the claim of principle the Supreme Court has denied or
sharply restricted the power ofjudicial review to ensure ob-
servance of constitutional limitations regarding aliens or im-
migration.3 Scholars have responded by urging the Supreme
Court to abandon its amorphous invocations of sover-
* Associate Professor of Law, University of Pennsylvania Law School.
This artide is dedicated to Friedrich Kfibler, with affection and grati-
tude. I would also like to thank all those who discussed these matters with
me during my stay in Germany, and especially my Frankfurt colleagues
Erhard Denninger, Spiros Simitis and Manfred Weiss. I thank Alex
Aleinikoff for his comments and criticisms, and the Institute for Law and
Economics at the University of Pennsylvania, which generously supported
part of the research.
This article covers German case law only through the end of 1989,
although occasional reference is made to other legal and political develop-
ments in 1990.
1. See, e.g., Aleinikoff, Federal Regulation of Aliens and the Constitution, 83
AM. J. INT'L L. 862 (1989); Henkin, The Constitution as Compact and as Con-
science: Individual Rights Abroad and at Our Gates, 27 WM. & MARY L REv. 11
(1985); Legomsky, Immigration Law and the Principle of Plenary Congressional
Power, 1984 Sup. CT. REv. 255; Martin, Due Process and Membership in the
National Community: Political Asylum and Beyon4 44 U. Prrr. L REv. 165
(1983); Schuck, The Transformation of Immigration Law, 84 CoLuM. L REv. 1
(1984).
2. See, e.g., United States ex reL Knauff v. Shaughnessy, 338 U.S. 537,
544 (1950) (Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.).
3. See, e.g., Fiallo v. Bell, 430 U.S. 787 (1977); Galvan v. Press, 347
U.S. 522 (1954); Mathews v. Diaz, 426 U.S. 67 (1976).
35

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