Symposium: Could this be the end of plenary power?

Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan Law School and the former head of the Department of Homeland Security’s Office for Civil Rights and Civil Liberties. She is among the plaintiffs’ counsel in Arab American Civil Rights League v. Trump, a case in the Eastern District of Michigan challenging the constitutionality of the Trump travel-ban executive order. That case is currently stayed pending the outcome in the Supreme Court of Trump v. International Refugee Assistance Project and Trump v. Hawaii.

For over a quarter of a century, scholars have been calling on the Supreme Court to jettison the so-called plenary-power doctrine, or at least to disavow the strongest form of that doctrine, which, to quote a recent summary by Peter Spiro, “give[s] the political branches the judicial equivalent of a blank check to regulate immigration as they see fit.”

I don’t know how the Supreme Court will decide the Trump v. IRAP/Trump v. Hawaii cases. I think Executive Order 13780 is unconstitutional, but I wouldn’t venture to predict what the court will find, if it reaches the merits of the case at all. But whatever happens in the Supreme Court, I predict that in constitutional culture, the Muslim-ban cases will stand for the much-to-be-desired demise of the strong form of the plenary-power doctrine.

The plenary-power doctrine was born in 1889, in Chae Chan Ping v. United States, usually referred to as the Chinese Exclusion Case. The case involved a law remarkably similar to the first executive order in the current travel-ban litigation. That executive order denied admission into the United States to all nationals of seven majority-Muslim countries, including even long-term U.S. immigrants who had left the country under a legal regime that allowed them to return easily. Similarly, the Scott Act challenged in the Chinese Exclusion Case ramped up the discrimination of the Chinese Exclusion Act by disallowing not just new Chinese immigration but return to the United States of prior immigrants who had left with a promise that they would be readmitted.

It’s worth quoting Justice Field’s majority opinion to get the flavor of the text, which didn’t merely defer to racism by Congress but itself dripped with anti-Asian animus, using still-familiar tropes. Field painted Chinese immigrants as unassimilable, scarily numerous, and animalistic. He wrote, for example, that Chinese laborers in California after the gold rush “remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or modes of living.” He reported with sympathy the view of some Californians that “immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization.” And he framed the racist laws not merely as deserving of deference but as entirely admirable:

To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us.

Field’s vision was explicitly racial. The presence of Chinese nationals was “dangerous to … peace and security” because those nationals were “foreigners of a different race …, who will not assimilate with us.” It was this racist vision that bolstered the case’s cession of authority to “the political department of our government, which is alone competent to act upon the subject.”

The point is not merely that racism was upheld against a legal challenge. The point is that racism — the need to defend white America against threatening non-white foreign hordes — was the primary justification for judicial deference to the president or Congress.

Under the Chinese Exclusion Case, the Trump Administration would win the current litigation over the travel-ban executive order even if the president testified under oath in open court that his policy was motivated by anti-Muslim animus — indeed, even if the executive order announced an explicit ban on admitting Muslims, as candidate Trump first proposed. Nonetheless, the Trump Administration is not arguing that a ban on admitting Muslims is, like the post-Civil War ban on admitting Chinese immigrants, constitutional. Both doctrine and norms have evolved over the past century to render confessed group-based animus a constitutional vulnerability rather than a justification for deference.

So the Department of Justice is, instead, asking the justices to wear blinders, in order to obstruct their view of the motivations behind the Executive Order. This approach seems wrongheaded to me. If a factual question is constitutionally relevant, why would we want a doctrine that interferes with the accurate resolution of that factual question? (And who could honestly believe that after the president was told that his planned Muslim ban was unconstitutional, his response was to say to his lawyers, “Good point. Let’s see if I can accomplish the non-bigoted part of that idea in a different way,” rather than to say, “I don’t care about that. Find me a way to get where I intend to go.”)

But others can make and rebut those arguments at more length. My point here is about the argument that the Administration is not making — the dog that is not barking in the night. That dog isn’t barking because it’s dead. The government’s briefing in these travel-ban cases signals that the strong form of the plenary-power doctrine is no more. If even the Trump administration isn’t prepared to assert the power to discriminate at the border based on animus directed at a particular group, that power is effectively gone. Even if the Supreme Court upholds the executive order, it should nail that particular coffin shut.