THE SUPREME COURT AND IMMIGRATION LAW: A New Commitment To Avoiding Hard Constitutional Questions?

By TREVOR MORRISON

Tuesday, Jul. 31, 2001

The Supreme Court's past Term was a veritable blockbuster for immigration law. In three cases decided in the final few weeks of the Term, the Court addressed a number of contentious issues that had been percolating in the lower courts and occupying immigration specialists for years.

Each case was decided by a 5-4 margin, with immigrants prevailing over the government in two of the three. Not bad, particularly from a Rehnquist Court not known for its solicitude for the claims of noncitizens. Yet these cases are most striking not for their outcomes, but for the rationales the Court used — or rather, did not use — in reaching those outcomes.

A cornerstone of the Court's immigration jurisprudence, the so-called plenary power doctrine, was not invoked by the Court in any of the three cases, despite the fact that the government relied on it in all three. Plenary power was the proverbial dog that did not bark, significant precisely because it was not heard from.

The Plenary Power Doctrine

The plenary power doctrine has been a central feature of the Supreme Court's immigration jurisprudence since the late nineteenth century. This doctrine accords the legislative and executive branches broad authority to regulate immigration, and provides that the courts should generally refrain from interfering in immigration matters.

The Court first articulated the doctrine in an 1889 case known as the Chinese Exclusion Case, in which it upheld a statute excluding Chinese laborers from the United States, without subjecting the law to any substantive constitutional analysis. The Court ruled that because immigration decisions by the political branches are "conclusive upon the judiciary," such analysis was improper.

The Chinese Exclusion Case arose in a time of virulent anti-Chinese racism in this country, hardly an era our modern nation should emulate. Yet despite its less-than-admirable beginnings, the plenary power doctrine has survived to shield a range of subsequent immigration provisions from searching constitutional scrutiny. The result, as the Supreme Court explained in a 1976 case called Mathews v. Diaz, is that, "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."

This practice has not gone unchallenged. Indeed, the plenary power doctrine has faced years of withering criticism from advocates, scholars, and jurists. Even individual members of the Supreme Court have occasionally questioned the doctrine's validity. Still, the Court has never formally rejected its plenary power precedents, and the government has continued to rely on them in its legal briefs when defending immigration provisions against constitutional attack.

True to form, the government relied on plenary power arguments in each of the three immigration cases heard by the Court this past Term. The Court, however, did not follow suit: In deciding the three cases, it never once relied on — or even directly applied — the plenary power doctrine. Rather, the Court employed alternative rationales for each of its decisions, rationales that enabled it to avoid choosing between either reaffirming or rejecting its plenary power precedents. An examination of these cases suggests that many on the current Court would prefer to avoid the plenary power doctrine whenever possible.

Nguyen v. INS: A Gender Discrimination Challenge to Citizenship Laws

The Immigration and Nationality Act (INA) provides that persons born outside the United States may claim U.S. citizenship if at least one of their parents is an American citizen. If the parents were not married at the time of the birth, the INA makes it easier to claim citizenship if the U.S. citizen parent is the mother, rather than the father.

The petitioners in Nguyen v. INS, a male U.S. citizen, and his foreign-born son, argued that in distinguishing between citizen fathers and citizen mothers in this manner, the INA impermissibly discriminates on the basis of gender and thereby violates the equal protection component of the Fifth Amendment's Due Process Clause.

In response, the government relied principally on the plenary power doctrine. The government argued that Congress's decisions about which foreign-born persons may claim U.S. citizenship (and the steps they must follow to make their claims) are exercises of its plenary power over immigration. The plenary power doctrine, the government urged, mandates judicial deference to those decisions, just as it does to Congressional decisions in all other areas of immigration law.

The Supreme Court sided with the government, but for different reasons. Rather than invoking the plenary power doctrine, the Court upheld the challenged provisions only after subjecting them to what purported to be full constitutional scrutiny — the same kind of scrutiny that the Court would have applied in a non-immigration case.

Equal protection doctrine in non-immigration areas provides that the government may not discriminate on the basis of gender unless doing so is substantially related to an important government interest. The Court applied the very same standard to the INA's distinction between citizen mothers and citizen fathers, and held that the distinction satisfied the standard.

Although the petitioners in Nguyen lost their case (and although advocates of gender equality may justifiably lament the Court's analysis), immigrants' rights advocates may have reason to take heart. The Court could have held for the government simply by ruling that the challenged provisions were passed pursuant to Congress's plenary power over immigration, and that they were therefore insulated from full constitutional scrutiny. But the Court declined to take that path, and, in so doing, may have augured a diminished role for the plenary power doctrine in future immigration cases.

INS v. St. Cyr: A Dispute About the Reviewability of Alien Removal Orders

In INS v. St. Cyr, the Court construed a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The provision stipulated that, "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain enumerated criminal offenses.

On its face, this provision might appear to deprive all courts of jurisdiction to review removal orders against so-called criminal aliens. (Removal, in this case, means removal from the country). But if the Court interpreted the provision that way, it would then have to determine whether the provision runs afoul of the Constitution's Suspension Clause. That clause, contained in Article I, § 9, Clause 2, provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The writ of habeas corpus has for centuries been an essential component of Anglo-American law, enabling persons held in custody or otherwise deprived of their liberty to test the legality of that deprivation. The Suspension Clause arguably makes the writ's continued availability a constitutional imperative.

Assessing the Suspension Clause's implications in the immigration field would have been a difficult undertaking for the Court, one that would have required balancing the Clause against the plenary power doctrine. The Court's cases give little guidance on how this balance should be struck, and what precedent there is seems far from consistent. But one thing is clear: However the Court proceeded in its constitutional analysis, it would have had to delve deep into its plenary power precedents. Moreover, to rule in favor of the alien, the Court would probably have needed to specify, for the first time, precisely what limits the Constitution places on the political branches' plenary power over immigration.

The Court never entered this thorny thicket. Instead, it ruled that despite its seemingly absolutist language, the IIRIRA provision at issue does not affect federal district courts' traditional habeas corpus jurisdiction. In so ruling, the Court drew heavily on its "avoidance" canon - the rule that if a statute can be plausibly construed in more than one way, courts should avoid constructions that would place the statute in constitutional doubt. (The Court also cited a related rule providing that implied, rather than express, repeals of the habeas writ are specially disfavored).

In essence, the Court reasoned as follows: IIRIRA's effect on the writ of habeas corpus is ambiguous, for it does not explicitly mention the general habeas statute. Resolving the ambiguity by interpreting the provision to repeal federal courts' general habeas jurisdiction would implicate serious constitutional questions under the Suspension Clause. Therefore, under the avoidance canon, these questions should be ducked by interpreting the provision to leave habeas jurisdiction intact.

The Court's use of the avoidance canon is telling, for it shows the Court thought there were serious constitutional issues to avoid. Had the Court believed the plenary power doctrine to be virtually unlimited by constitutional provisions such as the Suspension Clause, then presumably it would have had little qualm with reading the statute more broadly and ruling for the government. The Court's refusal to take that approach may reflect some discomfort with the plenary power doctrine and the judicial minimalism it prescribes.

At the same time, however, using the avoidance canon enabled the Court to dodge having to turn its possible uneasiness about the plenary power doctrine into a formal holding that the doctrine is no longer good law. In order to use the avoidance canon, all the Court needed to do was to identify "constitutional questions" raised by a broad reading of the IIRIRA provision. It did not, however, need to answer those questions. Thus, the Court avoided having to reach any definitive conclusions about the status of its plenary power precedents.

Zadvydas v. Davis: A Challenge to the Detention of Removed Aliens

The Court took a similar approach in Zadvydas v. Davis, which involved provisions of the INA governing the detention of aliens who have been ordered removed.

As a general matter, most aliens are removed within 90 days following the entry of their removal order. But if the INS is unable to remove an alien during that 90-day period, and if the alien is being removed for having committed an "aggravated felony," the INA provides that the INS may continue to hold the alien in custody pending his removal.

In some cases, however, the INS may not be able to locate a country willing to accept a particular alien, making it virtually impossible to remove him. Zadvydas raised two questions: Does the INA authorize the continued detention of removable aliens even in cases where their future removal is no longer reasonably foreseeable? If so, is such potentially indefinite detention constitutional?

As in St. Cyr, the constitutional question in Zadvydas is a difficult one. On the one hand, the Court's decisions regarding civil detention in non-immigration contexts raise serious questions about the constitutionality of indefinite detention. (Of course, criminal detention can be for life, but the aliens affected by Zadvydas have already completed their criminal sentences and are only being detained civilly until removed from the country.)

On the other hand, the Court in 1952 relied on the plenary power doctrine to uphold the potentially indefinite detention of an alien who had been denied admission to the United States. That case, Shaughnessy v. United States ex rel. Mezei, was the centerpiece of the government's argument in Zadvydas. In response, Zadvydas contended that to the extent Mezei applied to him, the Court ought to overrule it.

As it did in St. Cyr, the Court avoided the constitutional issue by finding for the immigrant on statutory grounds. And again, the Court relied on the avoidance canon to get the job done.

The Court's analysis was similar to that in St. Cyr. First, it found a statutory ambiguity. The statute did not by its terms contain any time limitation on the detention period, but it could be read to incorporate an implicit reasonableness requirement. If so, then it would not authorize continued detention once an alien's removal is no longer reasonably foreseeable. And because reading the statute to permit indefinite detention would raise serious constitutional concerns under the non-immigration precedents, that reading should be avoided in favor of a reading incorporating a reasonableness limit.

Once again, the avoidance tactic enabled the Court to decide the case in the immigrant's favor without having to reach any definitive conclusions about its plenary power precedents.

The Long Awaited End of the Plenary Power Doctrine?

Had it wished to, the Court could have decided Nguyen, St. Cyr, and Zadvydas in the government's favor by relying on the plenary power doctrine. Doing so would have provided a short and easy answer to each case. But the Court didn't take that route, even when, in Nguyen, it was prepared to decide the case in the government's favor.

Alternatively, the Court could have used any or all of the three cases to reexamine, restrict, or even overrule its plenary power precedents. It didn't do that either.

Why? Perhaps because the Court was not certain what to do about its plenary power precedents, and preferred instead to find ways to decide the cases without having to say anything definitive about the plenary power doctrine. Whether the Court will continue this avoidance in future immigration cases is hard to say. But if the trend does continue, plenary power's critics have reason to hope that the doctrine may simply fade into disuse — eventually disappearing not with a bang, with a whimper.


Trevor Morrison is an associate at a law firm in Washington, DC. He previously spent two years in the U.S. Department of Justice, first as a Bristow Fellow in the Office of the Solicitor General, and then as an Attorney-Advisor in the Office of Legal Counsel.

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