Should the Judges Have It?

Federal immigration law is based on plenary power which holds that legislative and executive branches of the U.S. government have sole power to regulate immigration. But should this be changed to a judge-administered system?

As it stands, all aspects of immigration policy are regulated by the legislative and executive branches of the U.S. government as a basic attribute of sovereignty. Known as the “plenary power doctrine,” this system has been affirmed by the courts on numerous occasions since the 19th Century. But a movement is afoot to erode political-branch control over immigration in favor of something else – a judge-administered system grounded on the premise that foreigners have a “right” to immigrate as an implicit idea.

The U.S. Constitution is mum on immigration matters, providing no direction. The only mention of immigration in the hallowed document merely mentions that Congress should hold the power of “naturalization.” From that vague mention, the legislative and executive branches have been continually evolving immigration law into the consequential “plenary power” mentioned at the outset. The primary effect of this plenary power has been to exclude and deport aliens or deny certain benefits according to political, social, economic, and a myriad of other considerations, typically without any nay-saying from the judicial branch. It doesn’t seem quite fair, but justifications have included the political question doctrine, in which cases the Federal courts almost always refuse to hear cases that involve policy questions “best resolved” by elected officials.

Other justifications have included arguments stressing lack of capacity, uniformity, efficiency (from a resource perspective, a court-run immigration system would be problematic), the premise that immigration enforcement is not punishment, and last but not least, historical precedent – an argument which was once used to support human slavery as a time-honored institution. Recent challenges to the “plenary power doctrine” have surfaced as a result of an increased judicial focus on individual rights, a willingness of courts to dissect or rewrite statutes (what some have decried as ‘legislating from the bench’) and the aggrandizement of power by certain individuals, elected or otherwise.

Simultaneously, open-border immigration attorneys have been diligently searching for an argument that would erase decades of Supreme Court precedent and remove regulation completely from the U.S. immigration equation. Again, if they are somehow successful in their quest, should the power to decide who should be welcomed into the U.S., who should stay, and who should go, be given exclusively to judges? Would such a change lead to more abuses or be inherently more just?

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee or to learn more about Houston immigration lawyer, immigration lawyer in Houston, Houston immigration attorney, visit their information filled web site at