US Supreme Court decision in Trump v. Hawaii and the plenary power doctrine

President Donald Trump

The acquisition of US citizenship by descent (iure sanguinis) is often called ‘derivative citizenship’ in the American literature, although the term is not used in the law. United States citizens who do not acquire their citizenship through birth on US soil are not ‘Fourteenth Amendment citizens’ and their citizenship status is, therefore, not regulated by the Constitution but by Congress. This in turn implies a weaker form of judicial review, since it has traditionally been the Supreme Court’s practice under the doctrine of plenary power that the field of immigration and naturalization is not reviewed with the same level of scrutiny as are other fields. There is, however, wide consensus among commentators that this doctrine is antiquated. Referring to recent cases like Miller v. Albright, Nguyen v. INS, Zadvydas v. Davis and Demore v. Kim, they claim the Court has shown a willingness to rethink its traditional

practice.

While slightly technical, it is worth including this quote by Cornelia Pillard and Alexander Aleinikoff to put this important difference between constitutional and congressional membership in perspective:

History [the Dred Scott decision] and precedent [Wong Kim Ark] have ... tended to place constitutional membership decisions in one category and congressional membership decisions in another. This schema puts jus soli citizenship in one category, while jus sanguinis citizenship, naturalization, and immigration are placed in another ... In these three statutory areas – citizenship by descent, naturalization, and immigration – the Court has recognized Congress’s broad power to establish categories and prerequisites. To our shame, racial and gender classifications have littered these areas of regulation since the earliest days of the nation.

In Semblances of Sovereignty, Aleinikoff distinguishes two different foundations for the immunization from judicial scrutiny of federal immigration and naturalization regulations. While one could claim that ‘different substantive constitutional norms apply to [these] regulations than apply to other congressional powers’, Aleinikoff thinks that the more convincing argument for judicial caution in this field is what he calls ‘institutional deference’. In other words, judicial interference with ‘political’ decisions touching on foreign policy and national membership would be inappropriate and would interfere with Congress’s need for flexibility. However, like other constitutional commentators, Aleinikoff is critical of the continued prevalence of the plenary power doctrine and wonders ‘just how strong are the reasons for judicial modesty in the field of immigration and nationality regulation today?’. His conclusion is, therefore, that

Venezuela is also on the list of banned countries

the institutional deference claim … is not persuasive. Applying the usual constitutional norms to immigration regulations will neither unduly intrude the judiciary into political matters, nor will it leave the United States weak, unprotected, or vulnerable. For nearly a century the Supreme Court has applied due process norms to procedures for the removal of aliens. There is no evidence that these rulings have hobbled federal efforts at enforcement of the immigration laws.

This long introduction was necessary to understand last year’s decision on the ‘travel ban’ in Trump v. Hawaii. In Peter Spiro’s recent case note, it is explained that ‘the United States Supreme Court upheld admissions restrictions imposed by the Trump administration on nationals of certain countries for putative security reasons. In so doing, the Court’s opinion reaffirmed judicial deference to the president on matters relating to immigration’. Spiro also describes the ‘dramatic eighteen months of political and legal battling over the travel restrictions’ as a ‘near-complete victory for the Trump administration’. From a legal perspective, however, Trump v. Hawaii is said to be ‘largely uninteresting’ because it reaffirms the plenary power doctrine ‘under which the Supreme Court has shown consistent deference to the political branches with respect to the regulation of immigration in general and the entry of non-citizens into the United States in particular’.

Author: Dr. Olivier Vonk