Should Judges Set Immigration Policy?


WASHINGTON (June 2009) – On June 8, President Obama will meet with congressional leaders to start discussions on an immigration bill. If such legislation were ever to pass, a central element would be an amnesty for current illegal aliens in exchange for enhanced enforcement.

But what if those new enforcement measures were overturned by the courts? We would then see essentially a repeat of the bait-and-switch that followed the 1986 immigration law. This is possible because of the erosion of the “Plenary Power Doctrine,” which holds that the political branches – the legislative and the executive – have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. In the words of Justice Felix Frankfurter, immigration matters are “wholly outside the concern and competence of the Judiciary.”

The plenary power doctrine has been affirmed by the courts countless times since the 19th century. Nonetheless, there is a movement underway among law professors and other activists to restrict political-branch control over immigration in favor of a judge-administered system based on the implicit idea that foreigners have a “right” to immigrate.

To explore this issue, the Center for Immigration Studies will host a panel discussion on Monday, June 8, 2009, at 9:30 a.m. in the Murrow Room at the National Press Club, 14th & F Streets, NW. Copies of a recent Backgrounder, “Plenary Power: Should Judges Control U.S. Immigration Policy?” will be available. The report examines the long history of the doctrine, the challenges to it launched by supporters of unrestricted immigration, and some possible responses.


Jon Feere: Author of the report and Legal Policy Analyst for the Center.

Peter Nunez: Former United States Attorney, former Assistant Secretary of the Treasury for Enforcement, and current lecturer at the University of San Diego.

Jan Ting: Former Assistant Commissioner of the U.S. Immigration and Naturalization Service, and current Professor of Law at the Temple University’s Beasley School of Law in Philadelphia.

The panel is free and open to the public. For more information, contact Bryan Griffith at (202) 466-8185 or

About Luke Ford

I've written five books (see My work has been noted in the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (
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