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Excerpted From: Catherine Y. Kim, Rights Retrenchment in Immigration Law, 55 U.C. Davis Law Review 1283 (February 2022) (369 Footnotes) (Full Document)


CatherineYKimOur national lore often (though not always) prides itself as a “nation of immigrants.” Most of us can trace our roots to immigrant parents, grandparents, or great-grandparents-- one, two or three generations removed. And we continue to be a nation of immigrants, as noncitizens arrive every year in large numbers, seeking new lives in the United States. Almost seven percent of our nation's population, or 21.3 million individuals, are noncitizens. Most are in lawful immigration status: 12.3 million are legal permanent residents and an additional 2.2 million are temporary lawful residents. These individuals work, attend school, pay taxes, and otherwise participate in and contribute to our communities in ways indistinguishable from citizens. The U.S. is also home to a large undocumented population, who account for over three percent of our nation's total population, or 10.5 million individuals. Some entered the United States without inspection by, for example, crossing the border surreptitiously. Others entered the U.S. lawfully with a visa but remained after their visa expired. Among the unauthorized, two-thirds have lived in the U.S. for more than ten years, and many live with U.S. citizen family members. These individuals too are members of our local communities, constituting a sizeable shadow population.

What is the constitutional status of these noncitizens? Since 1886, it has been clear that all individuals in the U.S.--citizen and noncitizen alike--are protected by the Constitution's guarantees. Thus, the government may not discriminate against noncitizens on the basis of race in granting laundry licenses; nor may it sentence a noncitizen to criminal punishment without trial; and even undocumented noncitizens are constitutionally entitled to a free primary and secondary education. But in a series of decisions dating from the 1880s, the Supreme Court carved out immigration regulations, i.e., those relating to the admission and removal of noncitizens, from ordinary constitutional review. Thus while in ordinary domestic matters noncitizens retain constitutional protections, the so-called plenary power doctrine denies such protections in all matters relating to the noncitizen's permission to enter the United States and remain here. Jurisprudential developments from the Civil Rights Movement and the due process revolution of the 1970s transformed the meaning of judicial review throughout public law, yet largely left immigration law as it stood. As Professor Peter Schuck put it, “Probably no other area of American law has been so radically insulated and divergent from those fundamental norms of constitutional right, administrative procedure, and judicial role that animate the rest of our legal system.”

But in the late twentieth century, cracks in the plenary power doctrine began to show. Even in cases lying at the core of immigration regulation, the Supreme Court began to exercise limited constitutional review. And in some of these cases, such review led to overturning the immigration decisions of the political branches on constitutional grounds. Commentators predicted that, eventually, the Court would come to recognize that even in the immigration realm, noncitizens possess the full scope of constitutional protections available to citizens. In the words of Professor Stephen Legomsky, “the plenary power doctrine will be frankly disavowed. Constitutional review of immigration legislation will enter another, perhaps final, stage. This next stage will be marked by a return to general principles of constitutional law. It will be unnecessary for courts to distinguish immigration statutes from other federal statutes.”

The question of whether and to what extent the Constitution protects noncitizens has become all the more important over the past quarter century. Both Congress and the President have enacted policies fundamentally at odds with constitutional norms. For example, Congress has severely curtailed the procedures available to challenge removal decisions and eliminated judicial review over a wide array of such decisions. It has mandated detention for tens of thousands of individuals--including lawful permanent residents--who have been charged with removal with no opportunity for an individualized hearing on dangerousness or flight risk. At the same time, it has vastly expanded the grounds for which a noncitizen can be deported, including, for example, for “illegally downloading music or possessing stolen bus transfers.” The Executive Branch, for its part, has discriminated on the basis of national origin to target individuals from Muslim-majority countries for interrogation and investigation. It has kept individuals, including lawful permanent residents, in long-term detention for years without providing an individualized assessment of flight risk or danger. And, after promising “a total and complete shutdown of Muslims entering the United States,” President Donald Trump imposed a ban on the entry of virtually all immigrants from a list of Muslim-majority countries. Such policies have given the courts ample opportunity to finally announce that the “plenary” authority of the political branches over immigration questions is no longer; that noncitizens and citizens alike enjoy the full panoply of rights guaranteed to citizens under the Bill of Rights--from equal protection to due process to the First Amendment. But the modern Supreme Court has declined to do so.

We currently are at a historic inflection point in our nation's immigration law and policy, as we leave behind four tumultuous years of an explicitly anti-immigrant Trump Administration and enter the first years of a Biden Administration which has vowed to protect noncitizen interests. This pivotal moment provides an important opportunity to evaluate the current constitutional status of noncitizens and for mapping out potential paths for reform.

This Article presents a comprehensive assessment of changes in the constitutional status of noncitizens in immigration law over the past quarter century. The last wave of analyses in this vein was published in the late 1980s and early 1990s. These seminal pieces generally argued that the Court was moving toward a fuller doctrinal recognition of the constitutional rights of noncitizens. This Article hearkens back to that scholarship but finds that developments in the intervening generation tell a different story--one of constitutional retrenchment. In areas ranging from the right to habeas corpus; procedural due process; discrimination on the basis of race, national origin or religion; free speech; and detention, it finds that noncitizens today enjoy even fewer constitutional protections than they did at the end of the twentieth century. In D.H.S. v. Thuraissigiam, the Court announced for the first time that certain noncitizens apprehended and detained within the United States enjoy neither a constitutional right to habeas corpus nor a procedural due process right to challenge their detention and removal. In Trump v. Hawaii, the Court sustained the President's decision to bar virtually all immigrants from a list of primarily Muslim countries, even in the face of considerable evidence suggesting anti-Muslim animus. In Reno v. AADC, one of the oldest cases examined here, the Court sustained the government's policy of targeting noncitizens for removal on the basis of First Amendment protected activity. And in Jennings v. Rodriguez, the Court rejected application of the doctrine of constitutional avoidance and instead interpreted the Immigration and Nationality Act (“INA”) to allow the long-term detention (more than six months) of noncitizens without an individualized opportunity to show that detention was unwarranted. Far from moving toward a full recognition of the constitutional rights of noncitizens, the modern Court has been moving in the opposite direction.

Importantly, though, these setbacks have not impacted all noncitizens uniformly. Rather, the Supreme Court generally has been more willing to recognize constitutional claims raised by lawfully admitted noncitizens, although such openness has been far from consistent. As to such claims raised by noncitizens present in the U.S. without authorization as well as noncitizens seeking initial admission, the Court has been decidedly more skeptical. The minimal constitutional protections previously extended to these groups largely have been jettisoned.

This Article then maps out a path forward from current jurisprudence, one guided by the normative premise that the continued failure to afford constitutional protections to noncitizens undermines fundamental norms of equality and the rule of law. In doing so, it acknowledges both the institutional limitations of the judiciary in defining membership in the polity as well as geopolitical realities on the ground that render impracticable a complete break from the plenary power doctrine in certain areas of immigration law. It nonetheless argues that some level of constitutional protections must be afforded to noncitizens.

Specifically, it maintains that ordinary constitutional protections should apply in full to the removal of legal permanent residents within the United States. Such protections would not afford these individuals with a constitutional right to remain, but it would prohibit removal on the basis of race, ethnicity, religion, speech, national origin, or other grounds inconsistent with our constitutional norms. These individuals further should be entitled to procedural due process protections, as delineated in Mathews v. Eldridge, to contest the legality of their removal. It argues that the same protections should apply to other lawfully present noncitizens (e.g., students, guest workers, tourists) as well as to individuals in the United States without authorization, with the caveat that these groups may be classified on the basis of national origin so long as such classification survives intermediate scrutiny, rather than the strict scrutiny that would ordinarily apply outside the immigration context. Finally, it contends that these same protections should be afforded to individuals seeking initial admission into the United States, except that for this group, national-origin classifications should be permitted as long as they satisfy a more robust version of the facially legitimate and bona fide reason standard. Such reforms would come a long way toward bringing immigration law into the fold of American public law norms.

I acknowledge that the Supreme Court, at least as currently constituted, may not be receptive to many of the reforms envisioned. But there may be space for lower courts to maneuver. More fundamentally, while the political branches can and should play important roles in the reform, it remains crucial for these rights to be recognized by the judiciary. Time and again through our nation's history, the processes of electoral politics have conspired to strip noncitizens of legal protections. The political branches simply cannot be relied upon to protect individuals who lack the right to vote; the only route to durable rights for this group is through constitutional reform.

This Article proceeds as follows. Part I recounts the emergence of the plenary power doctrine during the era of Chinese Exclusion, its affirmance at the height of the Cold War, and its subsequent retreat during the latter part of the twentieth century. Part II then turns to the modern era. In areas ranging from habeas corpus doctrine, procedural due process, discrimination, free speech, and detention, the Supreme Court's recent decisions have doubled down on the notion that immigration law is to operate as a constitution-free zone. It then describes how some of the headlining cases of recent years, in which noncitizens won before the Court, ultimately obscure the absence of more durable protections for these individuals. Part III engages in a normative assessment of the current state of the doctrine and offers proposals for reform to expand the scope of constitutional protections extended to noncitizens.

[. . .]

Notwithstanding the optimistic predictions of commentators, immigration jurisprudence over the past quarter century has been marked by a judiciary increasingly hostile to the constitutional claims of noncitizens. In areas ranging from access to the courts, procedural due process, discrimination, free speech, and detention, the Supreme Court has reversed even the modest gains of the twentieth century. The period is aptly characterized as one of rights retrenchment.

One might counter by pointing out that while the modern Court has denied constitutional protections to noncitizens, it has been relatively active in protecting their interests under statutory or regulatory law. But leaving the rights of noncitizens to the political branches is a dangerous game. As the Court itself has noted, noncitizens are the paradigmatic “discrete and insular class” whose interests are most vulnerable to political majorities. And, if the Trump era has taught us anything, it is to be less sanguine about how far the political branches may be willing to go in harming noncitizens.

The prognosis is not entirely fatal, however. Current doctrine recognizes some constitutional protections for noncitizens, especially legally permanent residents. And it leaves openings for the recognition of additional rights. Some aspects of the doctrine, however, simply cannot be reconciled with constitutional norms of equality and the rule of law and must be formally overturned.


Catherine Y. Kim. Professor of Law, Brooklyn Law School. I am grateful for invaluable feedback and comments from Robin Effron, Maryellen Fullerton, Jennifer Lee Koh, Hiroshi Motomura, Alice Ristroph, Bijal Shah, and Jocelyn Simonson.

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