The “plenary power” doctrine applied to immigration policy established by the political branches is an anomalous and highly dubious one. But as I argue, it’s particularly inappropriate as applied to Trump’s order:
Even if one is sympathetic to the plenary power doctrine as applied to immigration in the abstract, the most important justifications for judicial deference are not applicable to this particular order and the process that produced it.
The first defense for extreme judicial deference pertains to the national security justifications offered by the Trump administration for its actions. Many have argued that the courts should be very deferential to the executive in cases of national security, that they lack the knowledge and expertise of the executive branch. Sometimes, it seems clear that this deference has gone too far in the past. For example, when the Supreme Court indefensibly upheld the internment of people of Japanese descent by the Roosevelt administration in 1944, it was clear that the order lacked any serious military justification and was motivated in large measure by racial animus that long predated the bombing of Pearl Harbor, but the justices either overlooked this or chose not to find out because of the tradition of deference to the executive branch in wartime.
But even if one argues that Korematsu was the case of a good doctrine carried too far, a high level of deference is particularly inappropriate as applied to this current case. The process behind Trump’s order was slapdash and inept to a degree that would be comic if the consequences weren’t so dire for so many innocent people. The relevant agencies were mostly cut out of the loop, and there was disagreement within the administration over the implications of the order. The driving force behind it appears to be Trump’s chief strategist Stephen Bannon, an alt-right publisher and writer with no relevant national security experience. Even if the premise that the judicial branch should defer to the expertise of the executive branch is generally sound — and this is dubious in itself — it would be bizarre to apply it in a case in which no actual expertise appears to have been involved the executive action.
The second justification for judicial deference is that, particularly on an issue as central to the function of government as national security, unelected judges should be extremely wary of overriding the decisions of elected officials who are accountable to the people. While there is some truth to this in general, there are also some obvious limitations to the argument — most notably, very few people think democracy is just simple majoritarianism, and there are many counter-majortarian features that structure the elected branches in the United States.
Rules are rules, and Trump is entitled to exercise the formal powers of his office. The courts should not overrule his actions based on mere policy disagreement. But in this context, to argue that on national security issues, democratic norms require a level of deference from the courts that would require judges to overlook what would otherwise be clear violations of the Constitution would be perverse.
Trump’s immigration orders should not be exempt from serious judicial scrutiny. And when courts apply that scrutiny, they are very likely to find that Trump’s order did not comport with the fundamental requirements of the Constitution.
There’s just no good reason that the courts should make a preemptive decision to ignore the unconstitutionality of this order.