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Excerpted From: Hallie Ludsin, Frozen in Time: The Supreme Court's Outdated, Incoherent Jurisprudence on Congressional Plenary Power over Immigration, 47 North Carolina Journal of International Law 433 (Spring, 2022) (340 Footnotes) (Full Document)


HallieLudsin“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”

Rights activists have been fighting for decades to extend constitutional rights-particularly due process rights-to immigrants facing detention and deportation to little avail. Their successes, while important (and despite commentary to the contrary), have done little more than dent Congress' seemingly indestructible plenary power over immigration. Congress' powers to place the burden of proof on the detainee to show she should be released or even to order detention without a hearing, for example, remain intact although neither is constitutionally permissible for any other form of detention, including detention of enemy combatants. The Supreme Court at times seems sympathetic to the obvious injustice in failing to fully extend constitutional rights to immigration proceedings, given their consequences, but believes its hands are tied by more than a century of precedent it used to guarantee full federal control over an area of law and policy that was originally shared with the states. The Constitution's failure to specifically enumerate immigration as a federal power required the Court to identify a source for that exclusive power. It landed on international law's sovereignty rights, which at the time were absolute, with a little help from foreign affairs and national security powers that, depending on the Court opinion or scholar, may or may not arise from the Constitution. The Court then used the sources of power to justify Congressional plenary power over immigration. The Supreme Court initially shielded this newly exclusive federal power from constitutional or international law oversight by deeming immigration a foreign affairs and national security matter and therefore a wholly political question. It has since implemented some judicial review, but only after granting extraordinary deference to Congress and, by delegation, the Executive because of what it perceives as the political nature of immigration powers. It has used muddied and muddled jurisprudence to almost wholly avoid the nearly century of evolution of international and constitutional law that would undo the worst of immigration law and policy's injustices. In doing so, it has effectively given the federal government permission to “make rules that would be unacceptable if applied to citizens.”

Neither international law nor Supreme Court jurisprudence on foreign affairs and national security powers provide support for the continuation of Congressional plenary power over immigration or the extraordinary deference it grants the federal government in the area of immigration. A dive into international law shows that sovereignty rights-or what the Court terms “inherent sovereignty”-are no longer absolute, and questions of immigrants' rights are explicitly a legal, not political, matter. After World War II, the international community, including the United States, adopted human rights expressly to limit sovereignty rights to protect individuals from abusive and arbitrary government behavior and guaranteed a legal remedy in domestic courts for any rights violations. A dive into Supreme Court jurisprudence also shows that while Congress and the Executive benefit from deference in foreign affairs and national security matters, that deference need not be so extreme-a point the Court clarified when it thwarted the Executive's efforts to claim similarly extraordinary deference over its treatment of enemy combatants after 9/11. Yet, Congressional plenary power over immigration remains justified by absolute sovereignty, and otherwise “unacceptable rules” remain subject to only minimal judicial review because of their political nature. At this point, the Supreme Court's continued reliance on absolute sovereignty and extraordinary deference to prop up an unjust immigration system is little more than rote recitation of case law from a bygone era, rather than a considered judgment of what international law and foreign affairs and national security powers permit when the government exercises its power to control immigration. The Supreme Court, effectively, is allowing nothing more than the weight of precedence to override the sources of power and shield unjust immigration law and policy from appropriate judicial review.

This Article proposes that immigrant rights activists could pose a more effective challenge to unjust immigration law and policy by taking direct, textual aim at the two crumbling pillars of Congressional plenary power. In its post-World War II plenary power decisions, the Supreme Court seems to assume Congress has the power to pick and choose whether international law applies to immigration proceedings based on the Constitution's federal treaty powers. It neither examines what it means to claim international law as a source of power or reconsiders whether international law continues to support Congressional plenary power and the rights violations that power justifies. The Court's failure to apply international human rights law to Congress' immigration powers is the equivalent of failing to apply a constitutional amendment to the very government behavior the amendment was designed to check. The Court also has failed to reconsider its policy of extraordinary deference to the political branches over immigration even as it has refused to employ that level of deference to wartime decisionmaking, which is much more closely tied to foreign affairs and national security powers than immigration. This failure leads to the absurd result that in some important aspects noncitizens facing immigration proceedings receive fewer due process protections than enemy combatants bent on the destruction of the United States. Rather than tying ourselves up in jurisprudential knots to find constitutional rights justifications for judicial protection of immigrant rights, this Article looks to use the main sources of immigration power-international law and foreign affairs and national security powers-to finally topple Congressional plenary power.

Part I begins by setting out a specific example of the problem this Article seeks to address: the gross injustice of Congressional plenary power over immigration. It details the United States' law and policy on immigration detention and compares it to the due process and liberty standards that apply to all other forms of nonpunitive detention in the United States to illustrate the otherwise “unacceptable” rules Congressional plenary power allows the government to make. This illustration then serves as a reference point for understanding Congressional plenary power as extraconstitutional and seemingly absolute and to highlight why it is so essential to hold the government accountable for these rights violations.

Part II then examines the origin of Congressional plenary power to (1) establish why relying solely on constitutional arguments to extend rights to immigrants in immigration proceedings may be an impossible task; (2) to offer the background for the fundamental inconsistencies in Supreme Court jurisprudence explored in Part IV; and (3) to ultimately provide a sounder basis for challenging Congress' nearly absolute power. This part documents the evolution of the Supreme Court's jurisprudence that first recognized the Constitution granted both the states and the federal government the sovereign right to control immigration; to sole federal control first under the Constitution's Commerce Clause, and then finally under inherent sovereignty granted by international law, with some added support from foreign affairs and national security powers. Part III then explains how federal immigration powers became relatively absolute. It examines the concept of absolute sovereignty as well as the Court's determination that foreign affairs and national security matters, at least with respect to immigration law, are subject to only the most minimal judicial review. With this knowledge, immigration rights activists can build cogent legal arguments that are both loyal to the Supreme Court's decisions on the source of federal immigration powers but capable of exploiting the profound weaknesses in how it maintains that power as nearly absolute.

The remainder of the Article identifies those jurisprudential weaknesses. Part IV begins by highlighting that inherent sovereignty no longer means absolute sovereignty. Section A articulates the post-World War II limits international law places on the sovereign right to control immigration and underscores that the United States has consented to these limits, which means the judiciary must enforce them. It then spotlights the Supreme Court's anemic approach to what it means for international law to be a source of power, which currently allows it to rhetorically claim international law's inherent sovereignty over immigration as equal in authority to the Constitution, but still somehow subordinate international law to federal statutes. Section B identifies the similar incoherency in the Court's unwillingness to revoke its extraordinary deference to Congress and the Executive although foreign affairs and national security powers no longer justify it under its nonimmigration jurisprudence. All of this is to spotlight that the Supreme Court has been derelict in its duty to protect immigrant rights as required by international law and the foreign affairs and national security powers that are the source of federal immigration powers.

[. . .]

Immigrant rights activists have struggled for decades with little success to overturn unjust immigration law and policy as unconstitutional. While noncitizens in the United States benefit from constitutional rights overall, the Supreme Court stripped them of meaningful constitutional protections when facing immigration proceedings as part of its effort to locate a source for a monopoly of federal power over immigration. When the Court landed on international law's sovereignty rights as the primary source of power, it relied on absolute sovereignty to establish Congressional plenary power. It then employed extraordinary deference to Congress and the Executive on foreign affairs and national security matters to avoid all but the barest judicial review.

The Supreme Court continues to resist constitutional rights arguments, which suggests that the best avenue for undoing Congressional plenary power over immigration and the injustice it creates is to target its deteriorating foundation in inherent sovereignty rights and foreign affairs and national security powers. Absolute sovereignty rights no longer exist and the Court has curtailed its deference to the political branches on other foreign affairs and national security matters, yet the Court's jurisprudence on immigration law and policy remains frozen in time. International law to which the United States has consented cannot justify human rights violations that it does not permit. Nor can the Court employ its constitutional jurisprudence that treaties are equal to Congressional legislation and that customary international law is inferior to that legislation to override a source of power. To do so would effectively treat Congress as the source of its own power, a legal impossibility. Continuing to rely on its absolute plenary power jurisprudence that predates the United States' consent to international human rights law is the equivalent of relying on jurisprudence that predates a constitutional amendment intended to overturn that very jurisprudence.

Further, the Supreme Court's continued claim that immigration law and policy is a foreign affairs and national security matter entitled to extraordinary deference is a woeful misunderstanding of international law and its obligations and is grossly out of step with the Court's post-9/11 jurisprudence. International human rights law requires states provide a domestic legal remedy for all human rights violations. And, at least since 9/11, the Court has rejected the federal government's efforts to claim extraordinary deference when it uses its national security and foreign affairs powers to incapacitate enemy combatants. Continuing to employ this deference leads to the absurd result that in some important respects enemy combatants bent on the destruction of the United States are entitled to greater due process and liberty rights than noncitizens in immigration proceedings.

The Supreme Court allows Congress, and by extension, the Executive to violate noncitizens' rights to liberty, due process, non-discrimination, and equality under the law, not because of deep considerations of the source of immigration powers or of the need to limit the rights of noncitizens because of weighty government interests, but simply because it always has. It is long past time for the Supreme Court to wholesale reevaluate its outdated rulings and incoherent logic that continue to allow the government to commit gross injustices against noncitizens in immigration proceedings. It is long past time for the Supreme Court to stop shirking its responsibilities and provide oversight of immigration powers as required by international law and the Constitution.

Hallie Ludsin, J.D., LL.M., Lecturer in Law, Emory Law School; Senior Fellow, Center for International and Comparative Law at Emory Law School.

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