The federal government has power—“broad, undoubted power”—over immigration. The Supreme Court has held that setting rules for entry and exit and determining the status of aliens are federal powers exclusive of the states. And it has demonstrated that the federal exercise of these powers is largely insulated from judicial review. The doctrinal shorthand for this state of affairs is known as the “plenary power,” and the plenary power is at the core of immigration exceptionalism. It is a doctrine rooted in the stark racism of the late-nineteenth century, and one subject to much criticism. If exceptionalism in immigration law is finally undone, it may be by Donald Trump’s extremism in immigration policy.
To a large extent, the far-reaching implications of the plenary-power doctrine have been limited by the mediating influence of normal party politics. But President Trump’s first 100 days in office—really, his first seven days in office—turned scholars’ worst-case scenarios into reality. Trump’s November victory was predicated, in part, on his extreme immigration platform. And the policies he has executed, justified by sweeping claims of federal (and executive) power over immigration, have already forced courts to grapple with the modern impact of an exceptional doctrine. Trump’s actions have unleashed a popular response that may ultimately serve to redefine the norms that inform the constitutional power over immigration.
I. Exceptionalism in Theory
The plenary power affects constitutional reasoning when immigration dovetails with questions of federalism, rights, or separation of powers—and its gravitational pull often takes the legal analysis out of the orbit predicted by traditional constitutional law. Academics have railed against the implications of this exceptional doctrine, particularly as it intersects with individual rights, and challenged its contours in hypothetical applications: How far could the federal government go when it comes to decisions pertaining to entry and exit? Would banning Muslims from entering the United States be permissible? Do other constitutional limitations—equal protection, the Establishment Clause—bind the federal government in its exercise of its plenary power over immigration? Is it still true that “whatever the procedure authorized by Congress” to deny entry, that is due process? Could an undocumented alien present in the United States for a year or two be summarily removed?
Though hypothetical, these teaching tools were rooted in the Immigration and National Act (“INA”). For example, INA §212(f) authorizes the president to suspend entry of any aliens or any class of aliens “whenever [he] finds that the entry of any aliens or any class of aliens . . . would be detrimental to the interests of the United States.” This broad congressional delegation of power, enacted in 1952, had been used by presidents from Carter to Obama, but in only narrowly targeted and specific situations (such as suspending entry of members of the Mugabe government in Zimbabwe or members of the Haitian military following the 1991 coup d’état).
In addition, INA §235(b) allows the removal—without a hearing—of certain aliens present in the United States without proper authorization. This “expedited removal” comes with few, if any, procedural protections, and an arrest and removal can happen on the same day. Beginning in 2004, the Department of Homeland Security limited the application of expedited removal to those who arrived at a port-of-entry and those apprehended within 100 air miles of an international land border who could not establish that they had been physically present in the United States for the previous fourteen days.
Both INA §212(f) and §235(b) raise constitutional issues, but the Supreme Court has yet to squarely address the provisions. In part, this is because of the work politics has done: there have not been recent dramatic examples of presidents testing the full extent of authorized Congressional power—or beyond (if the Executive is thought to have its own inherent authority over immigration). Though not all would agree, the Court may have heretofore been reasonable in determining that, in the main, deference to the political branches in this area is appropriate. Discretion may be the better part of valor, but, in immigration policy, it has also been a way of maintaining the case for robust plenary power.
II. Extremism in Fact
In his first week in office, President Trump took the hypotheticals out of the classroom and thrust them into the national discourse. On January 25, 2017, he issued Executive Order (“EO”) 13767, Border Security and Immigration Enforcement Improvements. In this EO, he has authorized the Secretary of Homeland Security to apply expedited removal to the full range of persons contemplated by the statute—expanding the timeline to require proof of presence of a full two years prior and with no limitation as to location. At this time, Secretary John Kelly has not yet determined whether, or how, he will expand expedited removal, but his memo implementing the president’s EO suggests that he will authorize deviations from current policy.
A recent Third Circuit decision, Castro v. Department of Homeland Security, held that constitutional habeas was not available to those covered by expedited removal. The Supreme Court denied certiorari on April 17, 2017. If Secretary Kelly expands expedited removal to the fullest extent contemplated by the EO and the statute, an undocumented alien present in the United States for twenty-two months who is arrested on the streets of Philadelphia would not be able to seek habeas review of the decision to remove her. This would take immigration exceptionalism to a new level, given that prisoners designated as enemy combatants at Guantanamo Bay have claim to constitutional habeas.
In addition to the Border Security EO and a second January 25, 2017, EO addressing Public Safety in the Interior (threatening sanctuary cities and raising serious questions about immigration federalism and separation of powers), President Trump issued EO 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, on Friday, January 27, 2017. This EO, among other things, suspended entry to the United States for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. By late Friday night and early Saturday, protesters and volunteer lawyers had descended on airports from New York to Los Angeles, and motions were filed in federal district courts in New York, Virginia, and Washington, seeking emergency stays of the order. Even after a federal judge imposed a partial stay, protests continued against what had become known as the #muslimban.
Litigation in Washington State resulted in a temporary restraining order that brought a nationwide halt to the EO; efforts by the Trump administration to lift the TRO were unsuccessful. On February 9, 2017, in a per curiam decision, a three-judge panel of the Ninth Circuit—including a George W. Bush appointee—refused to issue a stay. The president issued a revised EO on March 6, 2017, and a federal judge in Hawaii blocked the second EO before it took effect. Litigation continues; the Ninth Circuit will hear the case in May.
Part of the argument presented by the Trump administration justifying the EO included a claim of national security—another area in which courts historically have given extreme deference. Perhaps Trump’s advisors thought that by asserting a national security overlay to the already robust plenary immigration power, the judiciary would be even more reluctant to intervene. The response from district-court judges across the country, however, suggests otherwise.
III. A Test for Popular Constitutionalism
The plenary power is rooted in late-nineteenth-century theories of sovereignty, reaffirmed by Cold-War-era cases; it has not yet been squarely reevaluated in light of the country’s changed attitudes to rights. But the recent public outcry, leading to a quick rescission of the original EO, reinforces the claim that executive action in this sphere must be subject to rigorous review. Trump’s campaign rhetoric extolling a ban on Muslims lends support to the general sense that the EO was passed with a discriminatory motive. And the protests and ongoing litigation reflect a strong public assumption that religious discrimination is constitutionally suspect, even in the area of immigration. Indeed, as was so clearly demonstrated in the Affordable Care Act case, NFIB v. Sebelius, a publicly developed constitutional understanding can affect how courts think about previously uncontestable constitutional norms. Popular constitutionalists should welcome and encourage this movement, but victory is far from secured.
Trump’s penchant for the excessive and the extreme has landed most of his immigration policies in court; his broad exercise of power may ultimately serve to curtail it. It will be a silver lining of Trump’s approach if his policies provide an opportunity for the judiciary to reevaluate an outdated doctrine and reclaim responsibility for saying what the law is. But, in bringing Trump to court, there is always the chance that courts will confirm immigration exceptionalism, solidifying federal power and leaving it unconstrained by constitutional protections. The President plays to win, and these are high stakes indeed.
* Associate professor, Northwestern Pritzker School of Law, with a courtesy appointment in political science at Northwestern Weinberg College of Arts and Sciences.