The Supreme Court’s Neglected Power Grab: Immigration
February 2024 | Otoniel Ramos (Staff Writer)
The Supreme Court’s deference and Congress’s plenary powers over immigration are contrasted against another power the Court seems intent to claw back: the Chevron doctrine. Chevron U.S.A Inc. v. Natural Resources Defense Council. Inc. (1984) has been a framework of review applied by the courts toward the practices of administrative agencies for nearly four decades. In a case involving the Chevron Oil Company, the Court decided, as a general practice, it would defer to the interpretations of congressional statutes offered by administrative agencies so long as the Court could deem them reasonable. [1] What has this doctrine come to mean? Why do some argue that overturning it represents another Supreme Court power grab, and how can the Court’s recent treatment of it compare to its treatment of immigration deference? The ruling in Chevron needed to answer challenges by environmental groups to an EPA regulation that interpreted the Clean Air Act in a manner that would hamper the goals of the legislation to improve air quality. [2] In a unanimous decision, the Supreme Court upheld the regulation, given the EPA’s “reasonable” interpretation of the specific provision in question. [3] Per the Court, Congress had not laid out a particular intention for the interpretation of the provision, and the policy choice by the EPA was reasonable. [4] What Chevron did was reconceive the “pre-Chevron” view that when Congress enacts statutes, these come with prescriptions from Congress for all questions that may arise. [5] The conceptualization “post-Chevron,” then, has been that Congress actually rarely anticipates these questions, let alone has answers for them, and thus, it is because of Chevron that agencies hold interpretive rights over the questions unanswered by Congress. [6]
In practice, the Chevron doctrine has led to a shift in power to agencies within the executive branch, but more specifically, given the power to shape environmental policy, for example, to the experts within those agencies rather than their lawyers or the federal courts. [7] [8] Chevron then, representing a broad delegation of interpretive rights to executive agencies, sheds light on why overturning the doctrine would represent not only a shift in power but a taking of power.
A few relatively recent Supreme Court decisions have indicated the looming overturn of Chevron. One example is Northwest Austin Municipal Util. Dist. No. One v. Holder (2009), where the particular district in question sought an exemption from Section 5 of the Voting Rights Act. [9] Section 5 prohibits “states and political subdivisions with histories of racial discrimination in voting” from enacting changes to their voting procedures without an administrative review from the Department of Justice (DOJ) or the U.S. District Court for the District of Columbia. [10] While the Court did not strike down Section 5 of the Voting Rights Act in this case, it struck a compromise opinion that granted the municipal utility district in question an exemption to the oversight but neglected to address the constitutional issue at hand. [11] This was not the same in Shelby County v. Holder (2013), which challenged a provision within Section 4 of the Voting Rights Act meant to classify the districts requiring administrative oversight under Section 5. [12] The Supreme Court ruled Section 4 of the Voting Rights Act unconstitutional, citing the use of outdated information and asserting that these restrictions presented an unconstitutional violation of a state's power to regulate elections. [13] It is notable that in this case, like in Northwest, the Court demonstrated no willingness to defer to the DOJ’s interpretations despite existing statutory delegations of power. [14]
While these two cases place the looming demise of Chevron into context, more recent Supreme Court history indicates a much broader trend in the Supreme Court’s behavior — a growing willingness to overturn precedent. Decisions like Brnovich v. Democratic National Committee (2021), [15] Dobbs v. Jackson Women’s Health Organization (2022) [16] and New York State Rifle & Pistol Association v. Bruen (2022) [17] all point to an ever-growing lack of judicial restraint. This development itself, albeit not new, is significant given the Court’s early use of judicial restraint to establish itself and its place in American politics. [18] Analyzing early Supreme Court history makes today's scope of its powers difficult to believe. To understand how much its power has grown, it may be helpful to discuss what the Court lacked or was not fully granted at its outset—that being judicial review and judicial sovereignty. [19] [20] With the Supreme Court “biding its time” during the tenure of the three Chief Justices before John Marshall, anticipating a greater role for itself, the themes of both “power grab” and “restraint” become essential for understanding its current place, status, and prestige in American politics. [21] Both Marbury v Madison (1803) and the Dredd Scott v. Sandford (1857) decisions illuminate the intriguing manner by which the Court has sought to grow its influence. [22] The Court’s broad deference over immigration, then, stands as an anomaly, particularly in the context of a court today that has no qualms ignoring deference and overturning precedent.
Immigration Deference
The Supreme Court’s broad deference in the administration of immigration law, specifically as it pertains to grounds of admission, exclusion, and deportation, begins with Chae Chan Ping v. United States (1889) or the Chinese Exclusion Case. [23] This case provides foundational reasoning to support the proposition that the substantive criteria enacted by Congress concerning admission, exclusion, and deportation are not subject to constitutional limitations. [24] Chae Chan Ping, who had been a long-time resident of the United States and held certificates issued to him that granted permission to return, challenged the constitutionality of an 1888 act preventing Chinese laborers from re-entering the United States. [25] The 1888 law in question was a reflection of the xenophobic animosity held toward these laborers in the state of California; [26] however, in upholding Congress’s power to exclude these Chinese laborers, the arguments provided by Justice Field have served to justify Congress’s plenary power over the enactment of provisions within immigration law. [27]
Those arguments are as follows: first, that the independence and sovereignty of the nation entail its absolute control over the entry of aliens into its territory. [28] Next, the migration of persons from one nation to another may be treated as if it were “a transaction between two governments, governed by extra-constitutional rules.” [29] These assertions have come to imply that immigration control exists as an unenumerated power inherent in the nationhood of any state. [30] The third and fourth propositions laid out by Justice Field are that the “independence and identity of a nation must not be adulterated or overwhelmed by the addition of uninvited aliens” [31] and that “the degree of threat is for the political branches, not the judiciary to evaluate.” [32] The last two arguments are grouped as they refer to the identity of a nation and the threat posed by the influx of migrants as a question to be substantiated by the political branches of government.
It is relevant to note that while Field believed that the judicially unreviewable powers gave Congress broad authority over the exclusion of migrants, it would be a later case in which he dissented, Fong Yue Ting v. United States (1893). [33] Fong Yue Ting extended Field’s reasoning to give Congress broad authority in setting standards for deportation. Some, however, posit that these arguments signal an “illegitimate judicial move” meant to supersede the interests and claims of individuals and their rights. [34] The question then turns to the legitimacy of this doctrine within a nation that holds a specific obligation to protect individual rights — not only those that may be limited in their application to noncitizens but also rights held by U.S. citizens.
Field’s contention may well have been that limiting the power of individual interests, and by extension, the ability of courts to undervalue governmental interests, was justified given a perceived inapplicability of Constitutional protections toward noncitizens. However, his argument in the first proposition disregards U.S. citizens' rights, which such broad power may infringe on. The absolute control over the entry of aliens, which Field argues derives from the nation’s independence and sovereignty, treats noncitizens as “guests,” making their permanence or stay here a retractable privilege. [35] Are noncitizens considered guests of the United States or guests of the individual citizens, relatives, or employers whom they have actually come to visit? Does the federal government, then, wielding such broad power over the entrance, treatment, and permanence of these individuals, not hold the potential to trample over a citizen’s freedom of association? [36] Add to this a further incompatibility with current international law standards in which human rights norms, like protections afforded under The Convention Against Torture, [37] may impose broader limitations on a nation’s conduct towards not just its people but noncitizens. [38] With continued adherence to this doctrine, real issues emerge.
As a consequence of such plenary power, various statutes and government provisions allowing for government discrimination based on ethnicity and political beliefs have been upheld while citing this power. The Court itself recognized in Demore v. Kim (2003) that it endorses “the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” [39] Examples of this include upholding a law that discriminated against fathers related by an “illegitimate” child from specific immigration preferences in Fiallo v. Bell (1977), [40] and maintaining laws rendering communists ineligible for visas in Kleindienst v. Mandel (1972). [41]
Among the most notable consequences of this deference have been in the realm of due process. For example, the Administrative Procedures Act (APA), passed in 1946, governed the processes by which federal agencies develop and issue regulations, including the standards for adjudicatory proceedings. [42] In the Immigration and Naturalization Services (INS) exempted itself from the requirements of the APA. [43] The Court established that deportation proceedings were (1) of judicial character and (2) required the INS to adhere to the provisions of the APA, such as the separation of functions for the prosecutor and the hearing officer. [44] What followed was a notable decrease in the number of deportations for Mexican immigrants, dropping from 16,903 in 1949 to 3,319 in 1950. [45] Congress would act quickly to nullify the effects of Wong Yang Sung, granting the INS a carve-out statutory exemption to the APA. [46] The significance of the deference afforded here is that the APA, [47] along with the Freedom of Information Act, [48] and the Constitution, [49] hold a distinct place for the Court when it comes to doctrines like Chevron, and receive de novo review or no deference at all from the Court. [50]
Returning to Field’s third and Fourth arguments, the suggestion is that elected officials, not the courts, should address national identity and immigration concerns. Professor Roger M. Smith argues, importantly, that political leaders often craft citizenship laws (a fundamental national identity and immigration concern) to fulfill two imperatives: fostering a unified national identity and legitimizing their leadership. [51] To accomplish this, they may offer civic ideologies or myths to foster that sense of peoplehood and further embed them in citizenship laws to serve as a “basic source of identity.” [52]
Two issues then arise from the argument that a nation’s citizenship laws and, accompanying it, the construction of a national identity, are not suited for judicial discretion. [53] The first issue is a more normative and political issue that arises from neglecting the dangers of constructing a membership in a political community to create a “peoplehood.” That is not to ignore the value a particular “peoplehood” may have but to recognize that the formation of such is often accompanied by tendencies to treat the community as “natural” and pre-political, usually leading to oppressive internal hierarchies and harsh injustices toward outsiders. [54] The second issue arises from the idea that provisions for citizenship or permanent immigration, like the allocation of membership within a political community, are best resolved democratically through the government’s political bodies and are not suited so much for judicial resolution. This issue, like the first, creates conflict when the allocation or the constraints to citizenship are designed in such a manner as to form a specific racial identity for the country or to favor one religion over another. [55] Such standards would undoubtedly come into conflict with constraints laid out in the Constitution, and it is those same oppressive internal hierarchies and harsh injustices that could find remedy if not for the suspension of normal standards of judicial review brought about by the Court’s deference. [56]
Final Considerations
The issues discussed above arise from a “political question” doctrine and call into question the deference the Court has adopted. Is the construction of citizenship or the rights of noncitizens within the U.S. strictly a “political question?” Does that categorization justifiably eliminate constitutional rights and limitations on constructing immigration law? How might a “political question” doctrine fare when balancing the real restrictions our nation has consented to through the making of international law? There is clearly a problem with a deference doctrine that the Court has positioned itself as reluctant to overturn for over a century. [57]
Next, take the understanding that both constitutional rights and obligations to obey the law should be grouped together. [58] Often presented as the mutuality of obligation approach, it provides that rights are required to justify legal obligations. [59] This mutuality of obligation doctrine was applied by the Supreme Court in Reid v. Covert (1957), extending to U.S. citizens abroad fundamental due process rights, such as a trial by jury, when the U.S, while prosecuting these citizens, attempted to assert legal obligations over them. [60] That ruling has led to an understanding that the Constitution and its limitations “apply” wherever the government decides to act and that the application of the Constitution and its protections provides the source for the government’s legitimate authority to act. [61] In following this logic, should extending government action or the imposition of legal obligations toward noncitizens not also require the complete application of the Constitution to be deemed legitimate? [62]
Finally, when considering the sufficient personal interests that ought to trigger protection through normal standards of judicial review, we can turn to due process and the debates around what process is “due” once its application in a given case is recognized. Should such a decision follow the same logic surrounding the Court’s deference on immigration? [63] Some might argue that individuals should only be afforded procedures mandated by Congress and nothing more. [64] The proponents of this argument point to the English common law origin of due process and an understanding that the due process or per legem terrae concession in the Magna Carta never overrode parliamentary action. [65] The first case taken to construe the due process clause, Murray’s Lessee v. Hoboken Land & Improvements Co. (1855), rejected the superiority of legislation over common law, making it clear, “the article is a restraint on the legislative as well as on the executive and judicial powers, and cannot be construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.” [66] Yet this is precisely what, until very recent history, the Court allowed Congress to do with immigration, with the Justices in Chae Chan Ping and Fong Yue Ting citing extra-constitutional powers and granting a plenary or “omnipotent” authority to the legislature over immigration to limit the role of individual interests. [67] It is Justice Field dissenting in Fong Yue Ting v. United States (1893) who points to the government's limited delegated powers, citing that the government “takes nothing from the usages or the former action of European Governments, nor does it take any power by any supposed inherent sovereignty.” [68]
In light of these considerations, the Supreme Court’s deference to legislative authority in immigration, juxtaposed against the foundational principles of due process, underscores a profound inconsistency in the guardianship of individual rights. When Justice Field, in his dissent in Fong Yue Ting, articulates the inherent limitations of government power, he not only contradicts himself and challenges the expansive authority granted to Congress over immigration but reaffirms the principle that the Constitution serves as the safeguard against arbitrary governance. This principle demands that the essence of due process, the Bill of Rights, and the Constitution’s protective reach should not be compromised by legislative will, especially in matters as consequential as immigration. In this context, the Court’s historical deference reveals not just an anomaly in its jurisprudence but a critical departure from its role in upholding the Constitution’s commitment to individual rights.
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