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68 Okla. L. Rev. 29 (2015-2016)
Why Immigration's Plenary Power Doctrine Endures

handle is hein.journals/oklrv68 and id is 39 raw text is: WHY IMMIGRATION'S PLENARY POWER DOCTRINE ENDURES DAVID A. MARTIN* Abstract The plenary power doctrine, traditionally traced to the Supreme Court's decision in Chae Chan Ping, has persisted despite a steady and vigorous stream of scholarly criticism. This essay undertakes to explain why. First, the Court's strong deference to the political branches does not derive from the concept of sovereignty. Justice Field's opinion for the Court invoked sovereignty not to trump rights claims but to solve a federalism problem - structural reasoning that locates the immigration control power squarely in the federal government, though not explicitly enumerated in the Constitution. The Chae Chan Ping Court's deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. The essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a -complex and uncertain global context, where many powers taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine because it is concerned that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on rigorous policy analysis coupled with advocacy addressed to the political branches - a forum where constitutional values can be pursued and successfully, though unevenly, vindicated, as Justice Field recognized. * Warner-Booker Distinguished Professor of International Law and Joel B. Piassick Research Professor, University of Virginia. The author served, during leave from his university position, as General Counsel of the Immigration and Naturalization Service from 1995 to 1998 and as Principal Deputy General Counsel of the Department of Homeland Security from 2009 through 2010. The views expressed herein are his alone and do not necessarily represent the views of his former agencies or the U.S. government. Warm thanks go to Sarah Allen for excellent research assistance.

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