How would you describe these concepts of the “plenary power doctrine” and “public rights exception”? Why do you think that the president has, seemingly, gained more power over immigration policy in recent times?
Week 14: Immigration and Citizenship
How would you describe these concepts of the “plenary power doctrine” and “public rights exception”? Why do you think that the president has, seemingly, gained more power over immigration policy in recent times?
Constitutional Law (Powers): Spring 2020 
The plenary power doctrine gives the legislative and executive branches the sole power to regulate immigration. From what I could gather, this doctrine draws its power from the belief that immigration is a question of national sovereignty. The public rights exception seems to grant Congress the power to allow separate courts to adjudicate these “public rights” disputes, which are between individuals and the federal government. This would shift the power away from federal courts, which hold the power under Article III. As for the second part of your question, I can’t muster up a good response. I feel like it would have something to do with national security, but also the mess that is Congress and the unwillingness (whether justifiable or not) of the Supreme Court to “take matters into their own hands”. Seems like in situations such as 9/11 the executive branch would have the power to make a decision quick, but I’m not sure if that really works since you asked about immigration policy (which I’m assuming to mean something long-lasting).
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Thanks, Daniela. I’d say you’re pretty much on the money with this: “it would have something to do with national security, but also the mess that is Congress and the unwillingness (whether justifiable or not) of the Supreme Court to “take matters into their own hands”.” There’s slightly more to it, but today is a class where we really see how much executive power arguments travel across issue areas
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There is a stark dichotomy that exists between “plenary powers” and “public rights.” The former provides a particular person or governing body with the supreme power to act in response to an issue or crisis with absolutely no restrictions whatsoever. The latter, however, are afforded to citizens, but, at the same time, are entrusted to political entities. Exceptions to public rights permit Congress to extend jurisdiction to non-Article III tribunals over cases between citizens and the federal government.
In accordance with the plenary power doctrine, Congress has the authority to pass national immigration policy without scrupulous judicial review from the Supreme Court. Moreover, the authority to enforce said immigration policy is vested solely in the executive branch. Dating back to George W. Bush’s presidency, there has been many prolonged instances of combined party control over the legislative and executive branches. These united fronts on immigration void of any significant input form the Court is perhaps why the president has seemingly gained more power over national immigration policy in recent times.
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The concepts of plenary power doctrine and public rights exception I believed are broad. Under this doctrine and rights, Congress can delegate powers to non-Article III tribunals to resolve disputes between individuals and federal governments if they wish to empower the tribunals. These empower the administrative state because the legislative and executive have the power to regulate immigration, however, there is a limit especially when the presidency does not support immigration and decides to withhold funds from states who do not comply with federal immigration law. I think that the president has gained more power over immigration policy in recent times because conservatives believed that undocumented immigrants are taking away jobs from the American people and do not pay taxes and the growth of immigrants over time which would pose a threat to legal citizens.
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The plenary power doctrine was born out of the Chinese Exclusion case in the 1880s. The courts ruled that Congress had the power to restrict the entry of specific nationalities. Controlling the nation’s borders is an inherent display of the nation’s sovereignty, as such it isn’t subject to constitutional restrictions. The courts would expand this doctrine to allow Congress to deport immigrants who were already admitted. In some ways this doctines gives Congress unfettered power over immigration laws, such as which groups get what rights. However, since 2001 the courts began to claim that immigrants get the right of judicial review over removal decisions.
In order to bypass this judicial intrusion, Congress calls upon the public rights exemption to Article 3. This exception gives Congress the power to allow non Article 3 tribunals to adjudicate and resolve disputes between individuals and the federal government. This would allow Congress to allow executive branch agencies, like the Department of Homeland Security, to settle individual immigration hearings. Despite these claims by Congress, the courts still claim that Congress is bound by the historical application of immigration policy. Congress has the responsibility to act within the norms of prospectively, uniformity and transparency.
The executive’s increased prominence in the issue of immigration is more puzzling after completing this reading. Based on constitutionalist argument Congress is the only branch with the power to dictate the rules over immigration, which can be drawn from the naturalization clause in Article 1, Section 8. Furthermore, the courts granted that power in the 1880s through the plenary power doctrine. When it comes to deportations the President can’t make the rules but he can dictate how those rules are applied. This is done through federal agencies like the DHS and Immigration and Customs Enforcement. However, this doesn’t give the president the right to make up new rules on immigration, such as Trump’s muslim ban. Congress would have to pass a law to make the act constitutional.
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Excellent, Pablo – thanks. You bring up DHS effectively at the end, and the question about executive power becomes clearer when you think: “Who appoints the heads of these agencies?”
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Plenary power doctrine, as I understood from the assigned reading is the power of the Federal government (excluding the Judicial Branch) to decide on issues of immigration. Basically, Congress and the President have the authority to decide the faith of certain categories of aliens. So that only the Congress and the President could decide on an immigration issue with an exception of public rights issues. This is a little confusing and I think I will understand more from tomorrow’s class discussion, but as I understood, Court could only intervene in the immigration process if there is a public rights issue, so probably something that would be a threat to the rights of the general American public (I am thinking of Korematsu here, even though he was a citizen of the United States but I believe this case is somewhat connected to the immigration law).
To elaborate on the second question of the blog, my opinion would be that the Executive branch is the only branch left out of three which can decide on immigration issues because Judiciary is out of the “game” here and Legislative can only transfer the issue to someone else, and that “someone else” would be the Executive. I also think it has to do something with de-facto war powers that the president has. As we discussed during the last class, the President doesn’t have the power to declare war. Nonetheless, many humanitarian interventions have gone undeclared by Congress and have not been even agreed on with Congress. Therefore, I am inclined to think that there is something special about all foreign relations that is assumed to be the power of the Executive branch. Each of the modern presidents (I am taking Bush to Trump) enhanced this power even more. Again, I am not perfectly sure if my answer is correct, and so I am looking forward to gathering more information about immigration law from tomorrow’s class.
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Thanks Kate – I think your answer is definitely capturing the essence of the issue. We’ll add the specifics in class.
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The plenary power doctrine outlines the power of federal government over immigration issues, whereby the legislative and executive branch hold significant power over immigration. Congress has power to enact broad legislation, but the legislation must be required to be under standard rules of procedures. Regarding naturalization, for example, they had to establish uniform rules. Congress has the power to determine who can be naturalized and “the power to regulate entry into the United States for those seeking naturalized citizenship.”
The president’s been gaining more power over immigration policy because the executive branch is able to enact more change than the legislative branch. They can also make decisions based on “national security,” which was used to justify Uighurs in Guantanamo bay. The executive branch can secure borders and restrict who comes into the country. The country is faced with numerous challenges that cannot necessarily fit under the standard of Congress’s slow procedures, so the president must be able to act efficiently and effectively, and the Constitution cannot account for every change and circumstance, so the executive branch has gained more power in directing actions toward immigration.
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Great answer to the executive power question, Gleo. There’s more to it, but you’ve explained the national security aspects very vividly
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The plenary power doctrine states that the legislative and executive branches of government have power over the rules and conditions of immigration. The doctrine holds that certain categories of aliens must accept whatever rights Congress chooses to confer or withhold. However, the judicial branch has had some power over the deportation of aliens and over some features of immigration law under the procedure of due process.
The public rights exception contradicts the judicial branch’s lack of power over immigration in the plenary power doctrine, as the Court has sometimes argued that the exception gives courts power over immigration matters. However, the public rights exception gives Congress the power to assign the adjudication of matters of immigration between individuals and the federal government to courts that are not federal and not staffed by life tenured, salary protected judges. The exception seems to give Congress the authority to overstep judicial review and assign matters of immigration to executive agencies.
One of the reasons the president has seemingly gained more power over immigration policy in recent times is probably because the legislative branches have gotten so unbudgingly partisan that they can’t handle making decisions anymore. The American political system has almost always had people in power who refused to reach across the aisle and agree with the other major political party. However, today, it has led the Congress to gridlock. With the Congress unwilling to get things done, they pass the power off to the executive branch, leaving the president with more power over immigration policy.
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Emma, thanks for mentioning the partisanship issue here. Very important especially when we consider Obama’s immigration actions
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How would you describe these concepts of the “plenary power doctrine” and “public rights exception”? Why do you think that the president has, seemingly, gained more power over immigration policy in recent times?
The plenary power doctrine states that only the executive and legislative branches of the government have the power to rule over all decisions and policies regarding immigration. This also included the power to determine the rules under deportation of any immigration that was considered ‘illegal.’ The example of this provided in the assigned reading for this week was Chinese immigration of 1880. “In the Chinese Exclusion Case, announced at the height of the nativism of the 1880’s, the Supreme Court upheld the power of Congress to restrict entry by Chinese nationals,” (360). The public rights exception states, (or worries its opposition) the following:
rigorously applied, the public rights doctrine would seemingly authorize Congress to assign the adjudication of immigration matters to executive branch agencies and to immunize agency decisions from judicial review. Strong statements of the public rights exception to Article III draw strength from the plenary power doctrine but conflict with the Court’s reliance on procedural due process and habeas corpus as complementary tools with which to preserve judicial oversight (362). In simpler terms, this meant, that congress had the right to get involved in the cases and decisions of the rights of private citizens and that of the federal government.
President Trump has gained more power over immigration policy because of those who sit within the executive and legislative branches of government who support his anti-illegal immigration policies. Many of his supporters who would also qualify in the position of ‘private citizen’ support his policies of anti-illegal immigration as well, and thus have taken their position in society as participants in the policies – thus voting, public advocacy (though right-wing advocacy)
m.jenniferbernard@gmail.com
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The plenary power doctrine allows Congress unlimited power to control the states borders/sovereignty regarding immigration. Congress has suggested that the scope of immigration can be allocated to non Article III tribunals to resolve dispute between individuals and the federal government under public rights exception from Article III which can also be assigned to executive branch agencies away from the Court.
I think the President has gained more power over immigration policy in recent times because the President and its agencies have the capacity and will power to improve immigration including undocumented immigrants such as DACA, or like what Trump is doing now, going after undocumented immigrants because it adheres to American traditional value by deporting and making fun of immigrants who come to the USA for the sake of bettering their and family’s future. Congress is already polarized and it would be hard to pass laws that could help immigrants in time of great struggles so passing it to the President, they would expect him to make decisions or pass laws quicker.
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” Plenary power doctrine” was intended to ensure aliens get the proper judicial review and the court would review Congress and its decisions towards Immigration policies. ” Public rights exception” were implemented to give power to the legislative and the executive branch. Initially, Congress would practice the power to restrict aliens coming into America. The Chinese Exclusion case demonstrates how Congress would authorize to exclude Chinese nationals from entering. Therefore, the Supreme court upheld that Congress wouldn’t deport coming aliens and the aliens that already exist. Under the plenary power doctrine, “certain categories of aliens must accept whatever rights congress chooses to confer or withheld”. What does it mean by certain categories? Let’s look at the aliens who were detained at Guantanamo Bay, they didn’t have the usual individual rights which should be equal for everybody. The Court had to ensure that the Constitution provides aliens with some assurance of judicial review. However, things started to get complicate and the Supreme Court granted the executive branch deal with immigration matters under the ” Public rights exception”.
I do agree that over the years, the president has gained more power over immigration policy. Article 2 of the Constitution provides the president to conduct foreign affairs and address immigration, however, Trump banning 7 Muslim countries depicts the extension of his power. Yes, the answer is always there and that is ” national security”. He wanted to deport illegal immigrants but there are certain restrictions. The only outcome that came from the Trump administration is building a wall between two nations. The Obama administration, however, had more power over immigration policy than any other president. He introduced DACA, which helped 3.9 million undocumented aliens from being deported temporary and extended his executive power even more. This is because Congress and the Court don’t want to get itself involved in immigration matters. When we discuss immigration, we can have various factors that can contribute to it. The president and its administration can justify immigration policies by claiming ” national security”, but when this matter goes to Congress or the Court, it can get complicated.
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Excellent, Tumpa – particularly on the questions of presidential power.
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The Plenary Power Doctrine gave Congress complete jurisdiction over deciding the entry of immigrants without any constitutional restrictions and the power to deport immigrants already admitted into the country. The Supreme Court describes this as Congress having “unfettered power over the treatment of aliens.” However, the court also decided on the need to impose judicial review and due process to avoid the question of its constitutionality. The Public Rights Exception contradicts the Court’s belief in due process and habeas corpus because it gives congress the authority to oversee immigration matters through the executive branch and prevents the agency’s decision from being judicially reviewed. The Public Rights Exception, through congress, gives the president the power to oversee immigration matters. Importantly, because of drastic changes in foreign policy and congress unable to agree on immigration reform, immigration policy decisions have been pushed towards the executive and judicial branches.
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Week 14 immigration and citizen
The plenary power doctrine is a federal policy of immigration granted to the legislative and executive branch to decide all immigration standards of sovereignty without limits.
Unfortunately, the Judicial branch lacks its autonomy when needed to preside over these political cases. States are also autonomous and have the obligation to protect undocumented citizens who reside in their State. Yet, the Federal Government manages to manipulate and interfere with States Sovereignty by threatening to withhold federal funds if they do not comply. The judicial branch should be able to strengthen the States instead it justifies the Legislative and Executive branch claiming that it is not prohibited under the Constitution. In Article III the Public rights exception of Article III limits rights by Congress settlements between private parties in courts.
This was all written under the immigration constitution to enforce a law of naturalization and to prevent the population of foreigners.
In recent times the president has gained more power over immigration due to his executive order policies. Obama Administration enacted the DACA program used to protect undocumented students who arrived here as children’s. He was also able to deport a numerous number of immigrants under his administration regarding immigrants which was considered constitutional.
Under the Trump Administration he is pin pointing which groups to exclude from entering the U.S. He placed a travel ban that affected many middle Eastern refugees. ICE has immigrants in cages that are inhumane. This is clearly a violation of their due process right and should be able to have a hearing in court. Many people are leaving their countries due to poverty conditions and or medical conditions and are unable to apply or get denied a visa to enter legally.
Trumps executive actions on immigration clearly infringe on their Due process and equal protection clause. He is also using this situation to marginalize this group politically, and economically.
This power was given by Congress to the President which signifies that Congress’ autonomy is reduced when given to another co equal branch. Citizens or not each individual are supposed to be protected under the State and each individual’s rights shall not be overstepped. There should be more protections for immigrants who work on fields and or in the U.S. as they contribute to the economy. They should be guaranteed state protections with a working permit and make the process more easier going as this exchange benefits both the States and the people.
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The federal government policy on immigration has been founded on plenary power doctrine, which holds that Congress and the Executive branch have the sole power to regulate all aspects of immigration a basic tenet of border protection. Public rights exception has to do with the overall goods instead of an individual’s public’s rights. For example, a much-needed road or bridge would trump someone’s personal property. In the 1880s the court upheld Congress’s restrictions on Chinese nationals (Chinese Exclusion Act) enter the country as an inherent incident of sovereignty thus there were no restrictions in the Constitution for such act. The plenary power doctrine was established to allow Congress to deport previously admitted persons. The courts view on immigration falling into the public rights exception under Article III the Congress has the right to allow non-Article III tribunals to adjudicate and resolves disputes between individual and federal government to the Executive. The President has gained enormous power because of Congress’s inaction. They haven’t passed any meaningful Immigration laws in years. Obama was known as the deporter in Chief and also he took action on DACA in which his actions are being challenged all the time. Every week Trump is issuing bans on groups of people. Congress needs to do its job.
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Thanks, Charlene – this is a particularly important point: “The President has gained enormous power because of Congress’s inaction.”
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The plenary power doctrine is the concept that there is no limit on the power that is granted to either the president, congress, or the courts. When that comes to immigration, it gives the Court the right “to encompass Congress’s power to provide for the deportation of previously admitted resident aliens as well” (360). Congress has been given a leeway through the Courts of what they can and can’t do concerning immigration and overwhelming lets them get to decide who can enter and get naturalized within the country i.e. Muslim ban. The public rights exception is the rights in which “Congress has the power to allow non-Article III tribunals to adjudicate and resolve disputes between individuals and the federal government” (362). This concept would allow Congress to give matters regarding immigration over to the executive branch. I believe that the expansion of the Commander-in-chief clause and the aftermath of 9/11, in turn, made immigration a high topic for the President. When the increased terrorist attacks that have been happening in post-9/11 and the so-called drug crimes increasing, it gave past and current President reason to ban and/or limit certain people from entering the country. President Bush Jr. created the National Security Entry-Exit Registration System that targeted nationals from 25 Muslim-majority countries through the factors of race, religion, and ideology. He obviously tried to use this system to counter-terrorism but in fact, this system ends up discriminating and putting strict consequences on those immigrants that were coming to the country and failed to identify, target, and track terroristic threats. Presidents have also gained power over immigration policy due to the Immigration and Nationality Act of 1952. “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”. This act has been President’s Trump argument in defense of his Muslim ban. This makes the President stronger in favor of their policies and the fact that Congress gave over their immigration powers.
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Thanks, Fatumata. Crucially, you highlight a key source of the president’s powers here: Delegation.
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The plenary power doctrine gives the executive branch “adjudication of immigration matters” (p.362) and allows the congress “unfettered power over the treatment of aliens” (p.361) The public rights exception allows Congress the power to “allow Article III tribunals to adjudicate and resolve disputes between individuals and the federal government.” (p.362) I think the power over immigration became more prominent after 9/11. However, I think the President has gained more power in recent times because as head of the state, immigration becomes a singular view on how Americans ideals are toward immigration. If the President believes immigration is viable to the economy then people will believe this is. if the statement were reversed. that immigration is bad for the economy people will also believe it. It has become clear in recent presidencies. A presidential candidates stance on immigration policy would be a way to measure how people’s view on whether these candidate’s stance on immigration policy shape public opinion. I’m sure this would require research to explicate any correlation between them.
-Martin B. (PSC212)
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The plenary power doctrine stemmed from the Court’s finding, during the 1880s, that Congress had no constitutional limitations on regulating immigration rights. Under the public rights doctrine, it gives Congress the ability to allow Courts to decipher cases involving public individuals and the federal government. Therefore, both doctrines enabled Congress to have full control over immigration processes without judicial review.
I think past presidents used the economy, racism, and war to instill a perception of public need for immigration law. For example one of the argued reasons for the Chinese Exclusion Act was that the Chinese were taking over the gold mining and railroad industry, pushing white Americans out of such jobs. This rhetoric of “immigrants take Americans jobs away” came about when the economy was going bad (sounds familiar?). Another anti-immigrant rhetoric that past presidents used is “immigrants are dangerous” which we especially see after 2001. This allowed presidents, with public approval to push forward a racist anti-immigrant agenda.
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“The plenary power doctrine provides a poorly theorized framework for immigration constitutionalism” as stated in Pfandor and Wardon’s work. The Constitution itself provides direction for naturalization in which Congress has power to grant citizenship to an alien, yet does not mention anything about immigration. So in lieu of absent mention, the legislative and executive branch are held responsible of handling immigration matters under the plenary power doctrine. “Congress has the power to allow non-Article III tribunals to adjudicate and resolve disputes between individuals and the federal government.” The public rights doctrine allows congress assign immigration affairs to executive branch agencies and to immunize agency decisions from judicial review, which derives greatly from the plenary power doctrine. The Supreme Court has basically taken a laissez-faire approach when it comes to immigration, and the executive has gained way more power over immigration policy. One of the main points that is blatant, is that the legislative branch is very much one-sided with the executive, to the point where it’s become a norm. The Constitution also grants the power of national security to the President, so in terms of immigration it is seemingly appropriate that the President is the one to take the matters into his hands.
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