Plenary Power Implications in Immigration Law

On October 25, Professor Adam Cox spoke to students about the implications of plenary power on immigration law at an event co-sponsored by the American Constitution Society and the Harvard Immigration Project. Before becoming the Robert A. Kindler Professor of Law at New York University Law School, Professor Cox clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit; served as the Karpatkin Civil Rights Fellow for the American Civil Liberties Union; and practiced at Wilmer, Cutler, and Pickering. He is a current visiting professor at Harvard Law.

Professor Cox began by acknowledging the popular perception that the federal government has unlimited authority over immigration policy and that immigrants have few rights. These perceptions are part and parcel of three ongoing debates – the “Travel Ban”, the recent legal dispute in Texas over an undocumented minor’s right to an abortion, and Supreme Court Case Jennings v. Rodriguez. Professor Cox posited that these three recent examples are a re-litigation of decades-old public discourse on immigration policy.

Comparing Presidents Obama and Trump, Professor Cox said the administrations indubitably have radically different immigration policies. While President Obama aimed to protect hundreds of thousands of immigrants from being removed, President Trump has increased enforcement efforts. Nonetheless, both administrations make identical claims with regard to federal authority over immigration policy. Jennings vs. Rodriguez, for example, was first argued during the Obama era.

On the subject of immigrant rights, Professor Cox contrasted the decisions in Castro v. U.S. Department of Homeland Security and Rasul vs. Bush. The Third Circuit in Castro agreed with the Obama administration that asylum seekers had no right to habeus corpus because they were apprehended as undocumented immigrants. But the Supreme Court in Rasul had decided that non-combatants apprehended in battlefields and brought to Guantanamo have the right to challenge due process issues via habeus corpus. Professor Cox explained that these different outcomes are due to the federal government’s immigration plenary power. The Constitution does not constrain the way the government acts with regards to non-combatants coming to the US.

To explain how immigration policy cannot be viewed separate from the rest of American public law cannon, Professor Cox provided an overview of the history of US immigration policy. Until the 1950s, American immigration policy admitted immigrants in a manner designed to preserve American whiteness. Professor Cox explained that former members of the communist party were deported in the 1950s, which should be understood in the context of McCarthyism and a society that had a different understanding of First Amendment protections. Also, the Second Circuit applied principles in Brown v. Board of Education and Bowling v. Sharped when it ruled that immigration admissions policies violated the Equal Protection Clause. The Immigration and Nationality Act of 1965 was passed the same year as the Voting Rights Act after pressure from Presidents Kennedy and Johnson. In 1977, the Supreme Court upheld discrimination on the basis of sex in Fiallo v. Bell. The court ruled against fathers who sued because it was more difficult for fathers to obtain green cards for their children than mothers could. The case was decided right after Craig v. Boren, during the birth of the sex equality jurisprudence and an in era in which Ruth Bader Ginsburg was consistently losing sex equality cases. Professor Cox emphasized that immigration policy cannot be viewed in the singular and must be viewed within the totality of American history.
In response to students’ questions, Professor Cox contended that our new immigration policies, albeit freed from the overtness of former admissions criteria, are a two-tier quota system due to the qualified relationship requirements and facially neutral diversity lottery. Professor Cox also provided details on the Rodriguez and Lora cases, which concern the rights of undocumented immigrants detained in Immigration and Customs Enforcement detention facilities. He also discussed the mistaken conflation between analysis of individual immigrant rights with analysis of the separation of powers.

The event concluded after an hour of presentation followed by Q&A. Students were presented a rewarding opportunity to learn more about the theory dimension and historical underpinnings of long-standing immigration debates.

-Heather Pickerell

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