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Plenary, Let it Be? Revisiting the Constitutionality of Congressional Control Over Immigration Law

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An esteemed immigration law professor at the American University Washington College of Law begins every semester by having his students sing a parody about Congress’ plenary power over immigration to the tune of “Let it Be” by the Beatles. The song effectively grapples with questions regarding the constitutionality of the doctrine and although the exercise comes across as a bit elementary at first, the song serves as an effective reminder that basis of our entire immigration system is primarily built upon an implied congressional power that the Constitution did not explicitly delegate to any of the three branches of government. In honor of Constitution week, this article retraces some of the foundational Supreme Court cases establishing the “plenary power doctrine” in immigration law before describing some of the enumerated Constitutional justifications for granting sole power of immigration to Congress.

Plenary: The Foundation of an Implied Constitutional Power Over Immigration

Outside of Congress’ power over naturalization, the United States Constitution fails to provide explicit directions on which branch of government is entitled to oversee the country’s immigration policy.  Until the latter part of the 19th Century, the Federal government had largely refrained from exerting control over immigration issues.  One of the earliest and most significant immigration cases in Supreme Court history is Chae Chan Ping v. United States (1889).   In this case, the Court was faced with determining whether an 1882 law, barring all future immigration of Chinese laborers, should exclude a Chinese immigrant residing in the United States who had left in 1887 for what he thought would be a brief visit to China.  While the 1882 Chinese Exclusion Act did contain a waiver provision designed to allow previously-admitted Chinese laborers like Chae Chan Ping to leave and return, that provision was discontinued by a new act of Congress in 1888 while he was on his return voyage to the United States.  In upholding his exclusion, the Court recognized for the first time an inherent federal power to exclude non-citizens, even though no such power is granted by the Constitution.  The Court relied on traditional notions of sovereignty to support their reasoning while utterly failing to address how the Constitution grants those powers to the political branches.  More importantly, the Court held that decisions by the legislative department to exclude aliens are conclusive upon the judiciary.  The seminal importance of this case in immigration law stems from the Court signaling its unwillingness to second-guess what it considered to be policy-based decisions while giving substantial deference to both the legislative and executive branches in the area of immigration, thus forming the basis of the plenary power doctrine.

Three years later, the Supreme Court rejected the right of an alien to appeal the Executive branch’s immigration decision in Nishimura Ekiu v. United States.  In that case, Mrs. Ekiu, a citizen of Japan, arrived in the U.S. by boat and claimed that she was to meet up with her husband.  For various reasons the immigration officer did not believe Mrs. Ekiu and denied her entry under a federal statute that directed immigration officer to deny admission to anyone likely to become a public charge.  Mrs. Ekiu appealed her case to the Supreme Court arguing that complete judicial deference to immigration decisions made by agents of the executive branch amounted to the denial of due process.  The Supreme Court disagreed and reaffirmed their previous decision by holding that the judicial branch was not to second-guess the political questions inherent in any immigration decision.  In regards to due process, the Court reasoned that the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are sufficient to constitute due process of law.

The following year, the Supreme Court extended the principles of the two aforementioned cases to the issue of deportation in Fong Yue Ting v. United States.  Taken together, Chae Chan Ping, Ekiu, and Fong Yue Ting represent the foundational pillars of the political branches’ plenary power over immigration.  The principles in these cases have since been reiterated by the courts on numerous occasions and while the Supreme Court has sought to place some restraints on the political branches’ plenary power over immigration, the holdings in these cases have never been overturned.

Enumerated Justifications for Congressional Power Over Immigration

The Federal government generally only possesses those powers that are enumerated in the Constitution or those that are “necessary and proper” for executing those enumerated powers.  While it is undeniable that the text of the Constitution fails to expressly authorize the Federal government to regulate immigration, proponents of political branch control over immigration have advanced many theories in support of their claim.  The first and most advanced theory in support of political branch control over immigration is that the Commerce clause gives Congress the power to regulate immigration.  Although Article 1, Section 8, Clause 3 of the Constitution does give Congress the explicit power to “regulate commerce with foreign nations,” an important question that arises is whether the regulation of immigration falls within the purview of commerce?  In the Head Money Cases in 1884, the Supreme Court answered this question in the affirmative by holding that a federal statute regulating immigration was a valid exercise of congressional power to regulate commerce with other nations.  While some pundits have argued that immigration fails to constitute commerce per se, the Supreme Court has consistently held that the interstate commerce clause permits Congress to regulate activities “substantially affecting” interstate commerce, even if those effects are indirect.

While the commerce clause argument is relatively strong, other proponents of congressional control over immigration policies have pointed to Article 1, Section 8, Clause 4 of the Constitution which authorizes congress to establish a uniform rule of naturalization.  However, naturalization is only one facet of immigration law and the provision fails to address the exclusion and expulsion of foreign immigrants.  Nevertheless, Congress and various commentators have argued that the necessary and proper clause allows Congress substantial leeway and deference to implement a uniform rule of naturalization that includes rules pertaining to the exclusion and expulsion of foreign immigrants.  In fact, through the passage of Section 316 of the 1952 Immigration and Nationality Act, Congress made lawful admission as a permanent resident a prerequisite of naturalization.  This illustrates how Congress has used the Naturalization Clause to further exert its power over the realm of immigration law.

Some commentators have looked to the Migration or Exportation Clause as a potential source of congressional immigration power.  However, this clause was only meant to apply to the slave trade and has been universally dismissed as a legitimate justification.  The final enumerated Constitutional source that some have looked to is the War Clause which allows Congress to regulate “enemy aliens.”  Questions surrounding this provision have proliferated since the commencement of the War on Terror through the Authorization for the Use of Military Force Act of 2001.  Unfortunately, many of these questions have remained unanswered.


It is important to remember that U.S. immigration policy was not founded on any specific Constitutional provision, but rather the judicially created “plenary power doctrine.”  Despite the fact that the courts have affirmed the plenary doctrine countless times since the 19th century, there is a growing movement underway to erode political-branch control over immigration in favor of a judge administered system based on the implicit idea that foreigners have a “right” to immigrate.  This movement has been spurred on, in large part, by more recent Supreme Court decisions that have chipped away at the Plenary Congressional Power by establishing various due process guarantees and administrative safeguards for immigration proceedings.  In cases such as Shaughnessy v. United States ex rel. Mezei, INS v. Chadha, and Zadvydas v. Davis, the Supreme Court has made it abundantly clear that the “plenary power doctrine” is not an all-inclusive Congressional grant of power over immigration.  Thus, it is evident that Constitutional interpretation will continue to play an important role in immigration law for the foreseeable future.

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