Abdul Aziz Meslat (International Criminal Court) has posted Recalibrating the Plenary Power Doctrine After Trump v. Hawaii, Thuraissigiam, and Loper Bright on SSRN. Here is the abstract:
This Article reexamines the constitutional foundations and contemporary operation of the plenary power doctrine in U.S. immigration law. For more than a century, the doctrine has afforded Congress and the Executive substantial authority over the admission, exclusion, detention, and removal of noncitizens while limiting the judiciary’s role in reviewing immigration decisions. The Article asks whether that exceptional level of judicial deference remains constitutionally justified in light of modern separation-of-powers principles, equal protection norms, and the Supreme Court’s post-Chevron approach to statutory interpretation.
The Article traces the development of immigration exceptionalism from the Chinese Exclusion era through the modern administrative state. It demonstrates that the plenary power doctrine was not derived from an express constitutional provision but developed through judicial decisions that accorded the political branches broad authority over immigration. At the same time, the Court has repeatedly recognized constitutional and statutory limits on that authority, particularly in cases involving noncitizens within the United States, detention, due process, equal protection, and habeas corpus.
The Article then examines the significance of Trump v. Hawaii, Department of Homeland Security v. Thuraissigiam, Garland v. Gonzalez, and United States v. Texas. These decisions reveal that contemporary immigration law does not operate under either absolute judicial deference or ordinary unrestricted judicial review. Instead, the availability and intensity of review vary according to the nature of the governmental action, the individual’s legal and geographic status, the source of the challenged authority, and the procedural vehicle through which judicial review is sought.
Particular attention is given to Loper Bright Enterprises v. Raimondo and the Supreme Court’s rejection of Chevron deference. Loper Bright reaffirmed that courts, rather than administrative agencies, must exercise independent judgment in determining the meaning of federal statutes. The Article argues that this development has important implications for immigration law. Although Loper Bright does not itself abolish the plenary power doctrine, it weakens the justification for allowing immigration agencies to receive broad deference concerning questions of statutory meaning merely because those questions arise in the immigration context.
The Article also incorporates comparative perspectives from Canada, the United Kingdom, Germany, and South Africa to examine how constitutional democracies reconcile sovereign control over borders with meaningful judicial oversight. Drawing on these domestic and comparative developments, the Article proposes a calibrated framework for recalibrating rather than abolishing plenary power. Under this framework, courts should retain structural review to protect separation-of-powers principles and the Suspension Clause; apply meaningful rationality review, including scrutiny for impermissible animus, in appropriate entry and exclusion cases; and conduct full Administrative Procedure Act review of executive agency action, including arbitrary-and-capricious review without Chevron deference.
The Article’s central contribution is to bring together doctrinal developments that have frequently been examined separately. Trump v. Hawaii demonstrates the continuing force of immigration deference; Thuraissigiam illustrates the consequences of restricting the availability of judicial review; and Loper Bright reaffirms the judiciary’s independent responsibility to interpret federal law. Read together, these decisions provide a basis for distinguishing legitimate political-branch discretion from judicial abdication. The Article therefore argues that plenary power can survive as a limited recognition of congressional and executive authority over immigration while its most expansive forms of judicial deference are recalibrated. Such an approach would preserve legitimate governmental authority over borders and foreign affairs while restoring a meaningful judicial role in enforcing statutory boundaries, constitutional limitations, and individual rights.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum