Panel: Should Judges Set Immigration Policy?

Related Publications: Backgrounder, Transcript
 

 

On June 8, President Obama will meet with congressional leaders to start discussions on an immigration bill. If such legislation were ever to pass, a central element would be an amnesty for current illegal aliens in exchange for enhanced enforcement.

But what if those new enforcement measures were overturned by the courts? We would then see essentially a repeat of the bait-and-switch that followed the 1986 immigration law. This is possible because of the erosion of the “Plenary Power Doctrine,” which holds that the political branches – the legislative and the executive – have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. In the words of Justice Felix Frankfurter, immigration matters are “wholly outside the concern and competence of the Judiciary.”

The plenary power doctrine has been affirmed by the courts countless times since the 19th century. Nonetheless, there is a movement underway among law professors and other activists to restrict political-branch control over immigration in favor of a judge-administered system based on the implicit idea that foreigners have a “right” to immigrate.