Modern Plenary Power Jurisprudence: Overview

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In more recent decades, the Supreme Court has continued to rely on the distinction between aliens who have entered the United States and aliens who have gained no legal foothold into this country in shaping the scope of Congress's immigration power.1 (noting that “Knauff and Mezei essentially restored the political branches' plenary power over aliens at the border seeking initial admission. And since these decisions, the Court has continued to signal its commitment to the full breadth of the plenary power doctrine, at least as to aliens at the border seeking initial admission to the country” ). Generally, the Court's jurisprudence has been based on the notion that nonresident aliens outside the United States have no constitutional or statutory rights with respect to entry and therefore no legal basis to challenge their exclusion.2

Footnotes

1

See Trump v. Hawaii, No. 17-965, slip op. at 30 (U.S. June 26, 2018) ( “[T]he admission and exclusion of foreign nationals is a 'fundamental sovereign attribute exercised by the Government's political departmentslargely immune from judicial control.'” ) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)); Castro v. U.S. Dep't of Homeland Sec., 835 F.3d 422, 443 (3d Cir. 2016) (noting that “Knauff and Mezei essentially restored the political branches' plenary power over aliens at the border seeking initial admission. And since these decisions, the Court has continued to signal its commitment to the full breadth of the plenary power doctrine, at least as to aliens at the border seeking initial admission to the country” ).

2

See Kerry v. Din, 576 U.S. 86 (2015) (Scalia, J.) ( “[A]n unadmitted and nonresident alien . . . has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” ); Landon v. Plasencia, 459 U.S. 21, 32 (1982) ( “This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application” ).