WASHINGTON (February 25, 2009) – In last week’s decision in the case of 17 Chinese Uighur Muslims held at Guantanamo, a federal appeals court reiterated the exclusive control over immigration by the political branches of government. The court quoted late Supreme Court Justice Felix Frankfurter that immigration matters are “wholly outside the concern and competence of the Judiciary.”
While this concept, called the “plenary power doctrine,” may seem obvious as a basic attribute of sovereignty, it is under attack by supporters of unrestricted immigration. There is a movement underway among law professors and other activists to erode political-branch control over immigration in favor of a judge-administered system based on the implicit idea that foreigners have a “right” to immigrate. This is despite the fact that the courts have affirmed the plenary power doctrine countless times since the 19th century.
In order to shed light on this effort to subvert the plenary power doctrine and hand the formulation of immigration policy to an unelected judiciary, the Center for Immigration Studies has published a new Backgrounder, “Plenary Power: Should Judges Control U.S. Immigration Policy?” by legal policy analyst Jon Feere. The report examines the long history of the doctrine, the challenges to it launched by supporters of unrestricted immigration, and some possible responses.
The relevance of the plenary power doctrine extends beyond Guantanamo detention cases and is unrelated to specific immigration policy preferences. If constitutional norms are somehow imported into civil immigration law – for instance through the use of a First Amendment analysis as a bar against deportation, race-based civil rights claims as an argument against exclusion, or protections against “cruel and unusual punishment” – the sovereignty and self-determination of the American people would be irreversibly compromised.