Broken Immigration Law
By 
I claim no knowledge on the details of this, or most any other, legal question. But this is a pretty compelling and disturbing piece on how and why our immigration law is so broken.
What happened to former Columbia University student and Palestine rights activist Mahmoud Khalil has rightly alarmed many indignant Americans. Some have sought reassurance in the idea that since his abduction is nakedly unconstitutional, the institutions of American democracy—the Constitution, rule of law, brakes on the unchecked use of power—will swoop in to put an end to the madness. After all, we have the vaunted First Amendment. Attorneys from the ACLU and Center for Constitutional Rights are representing Khalil; surely their free speech arguments will impel his freedom and cancel his deportation. His detention surely is just one more instance of Trumpian insanity. Surely it will prove legally frivolous.
But it’s too soon to be sure, thanks to over a century of federal law that has hogtied the judiciary—and most dramatically, the Supreme Court—when it comes to judges’ ability to rule on the constitutionality of immigration rules. Yes, the First Amendment offers speech protections. But we also have a lesser-known idea that has influenced congressional and executive branch–mandated immigration law for well over a century: the plenary power doctrine. According to the doctrine’s principles, judges should avoid ruling on whether or not immigration laws are constitutional, even when it appears they are not.
This exceptionalism is supposedly justified because immigration is tied to national sovereignty and security. With that logic, the plenary power doctrine has created a situation in which, as a legal scholar once noted, the mere mention of the word “immigration” “has been enough to propel the Court into a cataleptic trance.” How did this trance originate? What other types of American jurisprudence has the doctrine hypnotized? And how does it affect Mahmoud Khalil—and the many other immigrant critics of Zionism whom Trump and Secretary of State Marco Rubio have promised to go after next?
The statute governing Khalil’s detention derives from a section of immigration law that defines as deportable “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences.” Rubio claims that Khalil is the adverse alien. His deportation case is expected to advance past immigration courts to federal district court, then probably to circuit court and the Supreme Court.
What will the judges rule? The plenary power doctrine seriously complicates that question—which revolves around three crucial words in the statute: “foreign policy consequences.” That language first appeared in the 1952 Immigration and Nationality Act (INA), an enormous body of immigration law that originated during the height of McCarthyism. More popularly known as the McCarran-Walter Act, some of the act’s provisions were used to mandate the exclusion and deportation of immigrants accused of being leftists, many of whom were Jews (the law’s co-author, Pat McCarran, was a notorious antisemite). Whenever the Department of Justice leveled the “Communist” or “Marxist” accusation as a reason for deportation, judges shrugged and said they could not rule on the case’s constitutionality or lack thereof.
Understanding how this judicial powerlessness came about requires going back still further in history. In the United States’ first century, free people coming to its shores from other countries were deemed largely exempt from federal regulation: the Constitution contains no enumerated power over immigration, and its management was left up to the states. As Harvard University legal scholar Gerald L. Neuman notes in his book Strangers to the Constitution, even native-born Americans in the 1860s who relocated from one state to another were often called immigrants or emigrants.
Then, in the 1870s, a national panic developed around laborers from China, who had started coming en masse during the Gold Rush, spurred on by economic downturn. White workers’ animus toward the Chinese began to escalate, and labor unions and politicians demonized the immigrants as subhuman vermin. With the 1875 Page Act and the 1882 Chinese Exclusion Act, Congress began to federalize the management of immigration, even as it blocked more newcomer Chinese. That left a large population of earlier arrivals as legal residents, who, like green card holders today, were permitted to leave temporarily to visit their homeland then return to America.
But in 1888, with anti-Chinese sentiment still at a fever pitch, Congress rescinded that permission with the Scott Act—leaving tens of thousands of temporary visitors stranded. One of them, Chae Chan Ping, was sailing back to San Francisco when the act took hold, unaware that his re-entry permit had been canceled. Denied admittance, he sued the government, and his case reached the Supreme Court. In its decision against Chae Chan Ping, the Court described the Chinese in America as “a menace to our civilization” and “an Oriental invasion.” It did not matter if bellicosity came from a “foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.” Either way, the United States needed to protect its sovereignty and security from danger. Decisions about how to combat the perils of immigration were now to be made solely by what the court called “the legislative department.” But, as immigration legal scholars Adam B. Cox and Cristina M. Rodríguez point out in their 2020 book, The President and Immigration Law, the legislative department encompassed both Congress and the executive—including, most importantly, the president. With those two branches in charge, the judiciary had no powers of review for constitutionality.
Again, I leave the details to the experts. But I note again that everything happening in the United States is extremely overwhelmingly American and there is far far more to learn about our present moment by studying the 19th century than there is by listening to more Nazi podcasts.