This essay discusses the doctrine of plenary powers and its relation to deportation law.  The doctrine of plenary powers in general has been under extra public scrutiny because of the alleged excessive consolidation of power by the Bush administration in the name of post 9-11 national security. The government’s rationale maintains that the Nation and Constitution must be protected during national emergencies, at any cost, even if normal Bill of Rights protections are curtailed.

In immigration cases, plenary powers have been consistently upheld by the Supreme Court, which has interpreted the Constitution as dependent on national security. But the doctrine of plenary powers is regularly overstated.  Accordingly, the Court has deferred to the absolute powers of Congress and the Executive branch over the status of noncitizens in the US.  Lately, during these insecure times—laced with sometimes exaggerated emergency scenarios--the first human demographic to suffer a lesser standard of protections is the noncitizen aka the foreigner aka the "friendless immigrant." 

Since “foreign nationals have no constitutional rights to reside here,” immigration courts subject them to lesser standards of due process protection, because under international sovereignty, “the Nation should have the final say as to who comes over its borders.”Post 9-11 plenary powers have enabled some notorious instances of human rights abuse, especially in cases involving Muslims and Cubans.  But fortunately for all ethnicities of immigrants facing deportation, the Court in 2001, referring to the matter of Zadvydas v. Davis, ruled that indefinite detentions of noncitizens facing deportation were “subject to important constitutional limitations.” But in my opinion this small concession was not nearly enough, because the Attorney General can still designate that a noncitizen is either dangerous or mentally ill and thereby hold the detainee indefinitely.

Noncitizens facing detention and deportation--documented or not, are subject to a second-tier application of Bill of Rights guarantees, especially in questions of due process.   Out of concern for equitable application of the constitutionally guaranteed rights of noncitizens, this article discusses the notion that the US immigration enforcement system wields extraordinary power over noncitizens in the United States.  The extraordinary power is attributable to the nation's sovereign right to determine who enters and exits its territory under what circumstances.  In hope of articulating a reasonable balance between the nation's right of sovereignty and the noncitizen's right to humane treatment, I discuss the nature and source of the power of immigration enforcement in order to evaluate the constitutional legitimacy of deportation procedures.

The fact is that any noncitizen can be excluded and deported for a growing variety of reasons.  This is problematic from a human rights perspective.  But first, in order to contextualize a substantive immigration enforcement discussion, one must be familiar with the constitutional relationship of immigration enforcement to what is called the doctrine of plenary powers.  Thus, the following article discusses the contextual relationship of plenary powers to immigration policy.  It is important to recognize that the doctrine of plenary powers is the source of the justifications for unconstitutional enforcement policies. For example, special wartime powers or plenary powers are assumed when the government needs to "do whatever it takes" to "guarantee" the nation's security.   Arguments against the legitimacy of the doctrine of plenary powers maintain that the "whatever-it-takes" attitude denies constitutional protections to noncitizens and during immigration procedures.

Following the 9-11 attacks, the circumstances for exercise of plenary powers seem reasonable to many Americans, even if some foreigners were denied some features of the constitutional protections of due process.  “Whatever it takes” to ensure the physical security of citizens means that presumptive equal protections may be overridden by the government under compelling circumstances.  At the time, it seemed more crucial that the government protect us from the "enemy within our borders."   However, in retrospect, the post 9-11 fear of foreign enemies now seems over-reactive.  Everyone remembers the administration’s fear politicking. Former Attorney General John Ashcroft personified overreaction when he unflinchingly announced to "terrorists . . . if you overstay your visa . . . [or] violate a local law . . . you will be put in jail", as if terrorists were amidst his listening audience.  One could argue that Ashcroft exploited the nation’s ill-defined fear of foreign enemies to connect immigration enforcement policy to the wars on terror and crime with that one proclamation.  The connection of immigration and doom came at a time when the government’s power grab appealed to nationalistic fears of additional attacks.

The fact remains today that since the 9-11 attacks, the federal government has systematically consolidated its ability to detain and deport noncitizens using the doctrine of plenary powers.   The substantiation of the government's plenary powers been most effectively supported by assumptions that the nation faces an ongoing state of national emergencies.  The well-publicized dangers inherent in three distinct discourses—1) immigration, 2) the war on crime, and 3) national security were combined to articulate the ongoing "emergency" conditions conducive to the permanent incorporation of doctrine of plenary powers.   However, the packaging of migrant-criminality, the threat of terror, and ineffective immigration law in the bundle of national security has been a wrongful step in the direction of accumulation of excessive government powers.  Some opponents of excessive government power similarly argue that Congress and the executive branch have accumulated virtually unchecked authority over immigration.

Plenary powers have been generally defined as exceptional powers taken by the political branches of government.  In one aspect, that means Congress has the power to make immigration law and the executive branch has the power to enforce it.  The pitfall is that plenary powers have traditionally sought exemption from constitutional compliance in immigration law.  When addressing judicial questions of plenary power versus the rights of foreign-born persons, the Supreme Court has consistently held that deportation falls under the nation's inherent right of sovereignty.  Presumptive emergency-conditions have helped the political branches of government to maintain excessive powers coupled with the fact that the courts have traditionally aligned congressional and executive power with foreign policy.

Plenary power is historically embedded in the government culture.  Arguably, the cultural embeddedness began when the legislative and executive branches invoked absolute power over the presence of Chinese laborers who at the time were construed dangerous to US peace and security.  The Supreme Court affirmed Congress' absolute power over immigration in the late 19th century when matters of sovereignty were linked to the racialized conception of "inadmissible" Chinese in the case of Chae Chan Ping v. the United States.

Ping challenged his exclusion as a clear violation of his constitutionally guaranteed due process, but lost in 1889.  In deciding against Ping, the Court applied plenary powers to uphold the now infamous congressional law that excluded Chinese laborers from entering the US in 1882.  Since Congress clearly intended to exclude Chinese people from the US, the Court’s finding helped to formulate the plenary powers of the congressional branch.  In the determining case, Ping's exclusion was upheld on grounds of the nation's sovereignty when the majority opinion read:

"That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.  Jurisdiction over its own territory to that extent is an incident of every independent nation.  It is part of its independence.  If it could not exclude aliens it would be to that extent subject to control of another power."

It is evident that the doctrine of plenary powers first enabled the government to legally construct a sub-constitutional foreign-other.  Otherness served to define 19th century Chinese "inassimilable and dangerous."  "Perceived foreignness" has since been conflated with race and origin, and even political ideology.  The constructed perception of "foreign-otherness" has been the model metaphor for alien exclusion since the inception of plenary powers more than a century ago—as if there were a safety valve of foreign-otherness to be deported in times of fear.

Natsu Saito argues that the Court's "exclusion" decision of 1889 continues to adversely affect those subjected to the system of immigration law.  During times when the government is not dedicated to manifest labor pool augmentation, deportation law, for the purposes of expediency, systematically denies constitutional protections to noncitizens.  Under the doctrine of plenary power, the application of immigration law proportions the relevance of constitutional principles and fundamental human rights.    The rights of the immigrant have been minimized by fear driven policy that relegates noncitizens to foreign-otherness.  I would argue that constructed otherness represents an uneven social reality that can deem certain groups to be threats to national security in order to scapegoat the politically vulnerable.  Evidence is seen in the Republican campaigning portrayal of illegal (mostly Mexican) immigration as matter of impending doom.  Still ready to exploit national insecurity, candidate Huckabee recently reminded us that our borders are vulnerable to dangerous hordes of incoming illegal Pakistanis.

Under the doctrine of plenary powers, noncitizens of Islamic and Arabic origin can be detained, deported, and even indefinitely incarcerated based on the attorney general's decree or even "immigration officials' assertions of national security concerns."   With or without putative security emergency, perceived foreignness such as Asian, Arab, and even Latino can be conveniently relegated to a second tier of constitutional rights.

Thankfully, some immigration scholars argue that government sovereignty over immigration should not translate to abridged constitutional protections.  Their concerns have been the jurisprudential terrain for the sporadic testing of plenary power in the nation's courts. Scholarly concern notwithstanding, one could argue that when in direct conflict with executive or congressional plenary power, deportation procedures minimize certain due process rights.   According to constitutionalists, this comes as no surprise because the courts have long recognized that governmental power to exclude and deport aliens may restrict aliens' constitutional rights when the two come into direct conflict.

Nonetheless, from both political parties many agree that aliens can claim some constitutional protections.  A liberal interpretation of Bill of Rights language holds that all "persons" within the territory of the United States are entitled to due process of law, including aliens.  On the other hand, many argue that while aliens are entitled to selected protections of due process, they do not enjoy the full complement of constitutional rights under immigration law.  Congress regularly makes rules for noncitizen aliens that would be unacceptable if applied to citizens.  There is no better example than the double constitutional standard manifested in the well-known 1996 anti-immigrant laws making it easier to be deported under diminished due process protections.

Using federal law immigration for precedent, the Court has not yet sufficiently limited Congress and the executive branch on constitutional protection issues.  Critics of excessive government contend that the Supreme Court shirks its interpretive duty when it defaults to the powers given to the political branches in matters of deportation.  The judiciary has been remiss in its principle duty to insure constitutional compliance during immigration law discourse.  Plenary powers allow the government to recurrently mete out lesser standards of justice to immigrants facing deportation.  I argue that lesser standards include the narrowing of the scope of due process protection in matters of deportation-related detentions.

The jurisprudential issue most deliberated upon is the due process issue of indefinite detention.   Recently, the Supreme Court in Zadvydas v. Davis 2001 held that indefinite detention is only constitutional if the person is dangerous.  However, as we know, dangerousness is a relative concept.  Thus, I argue that the attorney general, under the doctrine plenary powers, can too easily and arbitrarily declare that special circumstances constitute danger.  Since the beginning of the Cold War, so called special circumstances have required "executive detentions" to indefinitely incarcerate aliens.   The ability to regularly invoke special circumstances and future dangerousness as pretexts to arbitrarily hold noncitizens subverts 5th Amendment due process protection from indefinite detention.  The fact is that noncitizens that have been subject to indefinite detention seldom present national security threats.  An examination of the Homeland Security data in the FY 2004 to 2006 period revealed that national security related charges were made against only 114 of the 800,000-plus persons charged with immigration violations. When it comes to actual deportation, the record is even smaller, with Homeland Security taking credited for only 37 such cases in the three year period. National security has become a pretext for detaining noncitizens indefinitely.

The 5th Amendment to the US Constitution provides a guarantee of freedom from detention stating that "no person shall be ... deprived of life, liberty, or property, without due process."  The issue of indefinite detention in immigration cases has been especially controversial, because, the doctrine of plenary powers has long been used to allow indefinite detention pending deportation in the interest of national security.   In the case of Zadvydas, a constitutional challenge to indefinite detention materialized in 2001. 

In brief, the Supreme Court's decision on the challenge yielded the following remedy.  If a noncitizen under order of deportation remains in custody after 180 days expires, he can file a habeas action under United States Code, because it can be reasonably assumed that the government may not be able to ever remove him from the country.  Prolonged confinement would under those circumstances be considered permanent in violation of the Constitution.

The constitutional challenge to plenary power ruled upon by the Supreme Court in 2001 was known as the indefinite detention statute.  The challenge to plenary power in the Zadvydas v Davis case was significant because the government argued that from a constitutional perspective, foreign-alien status itself can justify indefinite detention.  The government attorneys argued that the exclusion of aliens is a fundamental act of sovereignty--inherent in the executive power to control the foreign affairs of the nation.  The government also cited precedent cases arguing that Congress has plenary power to create immigration law and that the judicial branch must defer to legislative and executive branch decisions. 

The Supreme Court issued a squeaker 5-4 majority opinion in the matter of Zadvydas pursuant to the relationship between the doctrine of plenary powers and the Constitution.  Prior to the analysis of the Court's opinion, some background on Zadvydas is useful.  He was tried and convicted on a 1987 narcotics charge and was sentenced to sixteen years in prison with six years suspended; Zadvydas served two years before he was released on parole.  Shortly after his release, immigration officials took him into custody and initiated deportation proceedings.  In 1994, an immigration judge ordered that he be detained without bond during deportation proceedings.  He remained in immigration custody for six years awaiting deportation. 

In many cases, the deportation of aliens is effected within a short period of time.  Most aliens are deported within a few months or less of the entry of a final deportation order according to immigration authorities.  However, not all aliens can be deported including Zadvydas, who, due to circumstances, was stateless and had no country to which he could be deported.  Kestutis Zadvydas is a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. Germany refused to accept him. He remains in the US today—stateless and undeportable.

 The question in the Zadvydas case was; when removal from the US cannot be effected, can immigration detain a legal permanent resident indefinitely without violating his due process protection against undue deprivation of liberty? 

By the time the case arrived to the Supreme Court docket, it had challenged the provisions that gave the attorney general power to detain any noncitizen indefinitely pending deportation under the 1952 and 1996 federal immigration acts.  All told, the Court ruled that individuals may be detained only for periods reasonably necessary to bring about their removal from the US.   The Court found that the statutes do not permit indefinite detention.  The decision was a victory for immigration attorneys with clients in jail, but the ruling took only a small step in the direction of limiting plenary powers over immigration--let alone grant full and equal due process protection to legally admitted aliens charged with immigration violations. 

The ambiguity of the Zadvydas decision also implicitly left the impression that an estimated 12 million illegal aliens do not deserve the same constitutional protection as legal residents.  The United States Supreme Court has decided that illegal aliens lack a right to be free persons within the United States and can be detained whenever the attorney general deems that they present a danger to the community or risk of flight.  Under the doctrine of plenary power, the attorney general has executive branch power to designate special cases.  In the case presented above, Zadvydas, pending deportation argued not to assert the right to be free in the United States, but the right to be free from detention.  The Zadvydas matter seemed to not challenge to immigration law as such, but instead the diminished standard of due process protection for noncitizens.

The Court could have narrowed the scope of plenary powers in Zadvydas v. Davis 2001, but the Zadvydas ruling was deliberately ambiguous.  In deciding Zadvydas v. Davis, the Court conceded that plenary power is "subject to important limitations," but in the same opinion inconsistently stated that despite constitutional problems, Congress had made its intentions clear in the 1996 immigration statutes providing for indefinite post-hearing detentions.   The majority opinion stated that in special cases so that "we must give effect to that intent." The decision was notable because it brought into question the degree of deference that the Court showed to the judgments of Congress when writing the 1996 laws concerning the constitutionality of detaining illegal immigrants before deporting them.

There was definitely doubt left in the Court's ruling.  Although the Court flirted with the idea of abandoning plenary powers, because it could find no clear demonstration of congressional intent to grant the attorney general the power to indefinitely hold individuals, it left the impression that judicial review continues to defer to congressional intent.   Such judicial deference to deportation laws can always be legally traced back to the embedded theory of plenary congressional and executive authority over immigration-related matters.

In spite of the sanctions against indefinite post-hearing detentions, six years following Zadvydas, the doctrine of plenary powers seems as strong as ever.  Hundreds of thousands of criminal aliens have been detained and deported under the 1996 immigration statutes.  The embeddedness of plenary powers can be clearly understood in an excerpt from a landmark 1952 deportation ruling. "Congress has plenary power over aliens and may deport them from this country at any time for any reason," wrote a judge in concurrence with an appeal of deportation case that reached the 5th circuit Marcello v. the United States.  The Supreme Court rejected Marcello's appeal because it was "clear that Congress had established a specialized administrative procedure applicable to deportation hearings . . . adapting them to the particular needs of the administrative process."  Administrative law is procedural, designed to get the job done, and notably self-exempting from constitutional constraints such as judicial review.  One might question the legitimacy of the exercise of plenary power over immigration because the daily adjudicating functions are exercised by administrative agencies such as the Department of Homeland Security under control of the executive and congressional branches of government.   

As mentioned, some immigration law scholars hold that the doctrine of plenary power has always impeded a proper synthesis of constitutional principles and deportation law.  Critics of plenary power argue, importantly, that the structure of the doctrine has barred constitutional limitations to its own authority, because plenary powers by design stifle conversation between the judicial and the executive and congressional branches of government.   The instrumentality of unchallengeable power manifests itself in the government's ability to exercise total control over the noncitizens.

The lower appeals courts in the Zadvydas case, declared his mandatory detention provision unconstitutional as applied to lawful permanent residents, who, by judicial interpretation, implicitly have more rights than another lesser category of aliens who have not been lawfully admitted.  Thus, illegal aliens putatively are subject to a third-tier of constitutional protection by virtue of their unrecognized immigration status.  This is highly problematic from a humanitarian point of view.

Still in election year 2008, the political branches still have complete, plenary, authority over immigration.  The circumstances under which all classifications of noncitizens in the country can be detained and deported vary according to the judicial interpretation of due process protections granted to "persons" by the Fifth Amendment.   From a pro-immigrant point of view, I am convinced that detaining deportees past a certain period is unconstitutional and seriously flawed from a human rights standpoint.