SCOTUSblog by Margo Schlanger 7/14/2017
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.
More:
http://www.scotusblog.com/2017/07/symposium-end-plenary-power/#more-258559
