An immigrant to the United States with a green card walks into his apartment building. Homeland Security agents enter, handcuff him, whisk him into detention hundreds of miles away, and present him with papers for his removal from the country. Then the government makes a public statement: the man hasn’t broken any laws, yet he’s still deportable.
What happened to former Columbia University student and Palestine rights activist Mahmoud Khalil has rightly alarmed many indignant Americans. Some have sought reassurance in the idea that since his abduction is nakedly unconstitutional, the institutions of American democracy—the Constitution, rule of law, brakes on the unchecked use of power—will swoop in to put an end to the madness. After all, we have the vaunted First Amendment. Attorneys from the ACLU and Center for Constitutional Rights are representing Khalil; surely their free speech arguments will impel his freedom and cancel his deportation. His detention surely is just one more instance of Trumpian insanity. Surely it will prove legally frivolous.
But it’s too soon to be sure, thanks to over a century of federal law that has hogtied the judiciary—and most dramatically, the Supreme Court—when it comes to judges’ ability to rule on the constitutionality of immigration rules. Yes, the First Amendment offers speech protections. But we also have a lesser-known idea that has influenced congressional and executive branch–mandated immigration law for well over a century: the plenary power doctrine. According to the doctrine’s principles, judges should avoid ruling on whether or not immigration laws are constitutional, even when it appears they are not.
This exceptionalism is supposedly justified because immigration is tied to national sovereignty and security. With that logic, the plenary power doctrine has created a situation in which, as a legal scholar once noted, the mere mention of the word “immigration” “has been enough to propel the Court into a cataleptic trance.” How did this trance originate? What other types of American jurisprudence has the doctrine hypnotized? And how does it affect Mahmoud Khalil—and the many other immigrant critics of Zionism whom Trump and Secretary of State Marco Rubio have promised to go after next?
The statute governing Khalil’s detention derives from a section of immigration law that defines as deportable “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences.” Rubio claims that Khalil is the adverse alien. His deportation case is expected to advance past immigration courts to federal district court, then probably to circuit court and the Supreme Court.
What will the judges rule? The plenary power doctrine seriously complicates that question—which revolves around three crucial words in the statute: “foreign policy consequences.” That language first appeared in the 1952 Immigration and Nationality Act (INA), an enormous body of immigration law that originated during the height of McCarthyism. More popularly known as the McCarran-Walter Act, some of the act’s provisions were used to mandate the exclusion and deportation of immigrants accused of being leftists, many of whom were Jews (the law’s co-author, Pat McCarran, was a notorious antisemite). Whenever the Department of Justice leveled the “Communist” or “Marxist” accusation as a reason for deportation, judges shrugged and said they could not rule on the case’s constitutionality or lack thereof.
Understanding how this judicial powerlessness came about requires going back still further in history. In the United States’ first century, free people coming to its shores from other countries were deemed largely exempt from federal regulation: the Constitution contains no enumerated power over immigration, and its management was left up to the states. As Harvard University legal scholar Gerald L. Neuman notes in his book Strangers to the Constitution, even native-born Americans in the 1860s who relocated from one state to another were often called immigrants or emigrants.
Then, in the 1870s, a national panic developed around laborers from China, who had started coming en masse during the Gold Rush, spurred on by economic downturn. White workers’ animus toward the Chinese began to escalate, and labor unions and politicians demonized the immigrants as subhuman vermin. With the 1875 Page Act and the 1882 Chinese Exclusion Act, Congress began to federalize the management of immigration, even as it blocked more newcomer Chinese. That left a large population of earlier arrivals as legal residents, who, like green card holders today, were permitted to leave temporarily to visit their homeland then return to America.
But in 1888, with anti-Chinese sentiment still at a fever pitch, Congress rescinded that permission with the Scott Act—leaving tens of thousands of temporary visitors stranded. One of them, Chae Chan Ping, was sailing back to San Francisco when the act took hold, unaware that his re-entry permit had been canceled. Denied admittance, he sued the government, and his case reached the Supreme Court. In its decision against Chae Chan Ping, the Court described the Chinese in America as “a menace to our civilization” and “an Oriental invasion.” It did not matter if bellicosity came from a “foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.” Either way, the United States needed to protect its sovereignty and security from danger. Decisions about how to combat the perils of immigration were now to be made solely by what the court called “the legislative department.” But, as immigration legal scholars Adam B. Cox and Cristina M. Rodríguez point out in their 2020 book, The President and Immigration Law, the legislative department encompassed both Congress and the executive—including, most importantly, the president. With those two branches in charge, the judiciary had no powers of review for constitutionality.
That abrogation marked the birth of the plenary power doctrine. Over subsequent years and cases, acceptance of the doctrine congealed into hard precedent, and was relied upon by both Congress and the executive branch in equal measure. As in Franklin Roosevelt’s World War II use of the antique Alien Enemies Act of 1798 to intern Americans into concentration camps—especially Japanese Americans—simply because of their ancestry, plenary power reasoning even bled into laws allowing the detention of U.S. citizens. The 1944 Supreme Court decision supporting internment, Korematsu v. United States, has since been roundly denounced by many Supreme Court justices but never formally overturned. Nor has the Court jettisoned Korematsu’s principle of unconditional judicial deference to the executive on national security matters.
Use of the doctrine reached its apex in the 1950s, when the government sought to deport noncitizens who had once been members of the Communist Party USA. Dora Coleman was one of them. A Jew born in Russia in 1900, she came to the United States as a thirteen-year-old and immediately went to work in Philadelphia sweatshops. While still a teen, she became a union organizer. In young adulthood, she was a sometime member of the Communist Party, joining intermittently when the organization responded to various social justice issues that Coleman sympathized with. By the 1940s she was married to a U.S. citizen, had three U.S.-born children, and owned a bric-a-brac shop in Philadelphia. In 1944 she applied to be naturalized. By 1950, the government had her in deportation proceedings.
The same happened to Robert Galvan, who immigrated to California from Mexico at age seven. By the 1940s he was a union activist at a tuna fish canning factory in San Diego. He was also a former member of the Communist Party—from back when it was legal and ran candidates for electoral office. Like Coleman, Galvan had a U.S. citizen spouse and children. And like Coleman, Galvan would find himself facing deportation.
The Supreme Court recurred to the plenary power doctrine to uphold deportation orders for both Coleman and Galvan. Coleman was one of three people whose cases were consolidated into one and styled Harisiades v. Shaughnessy. Deportation, the Court wrote in the 1952 decision, might be “unwise,” even “cruel.” But “any policy toward aliens,” it continued, is so “vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government . . . as to be largely immune from judicial inquiry or interference.”
As for Galvan, the Supreme Court acknowledged in 1954 that what was being done to him could deprive someone “of all that makes life worth living.” It could even constitute “banishment or exile.” But even though, as Galvan’s judges noted, deportation was comparable to the punishment suffered by people convicted of crimes, immigration law had few of the same due process rights as criminal law. Violating it was a mere administrative infraction—one covered by civil law. What’s more, immigration law had become so clotted by plenary power concepts that all the Court could say was that “we are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors.”
Galvan was deported to Mexico. Coleman stayed in Philadelphia only because the Soviet Union would not take her back. In legal limbo, she had to periodically check in with immigration officers. A few years ago, I located her daughter, by then elderly. She told me her mother had lived in constant fear of being imprisoned on Ellis Island, which in the 1950s had a detention section for immigrants accused of Communism. Coleman died of a stroke in her early sixties; Galvan succumbed at forty-six.
McCarthyism eventually sputtered out, and judicial acceptance of the plenary power doctrine began to lose some of its hold as law in general became more sensitive to human and civil rights and as judges broadened their application of due process on administrative and procedural grounds. The evolution became apparent in some cases in lower courts. In 1995, Bill Clinton’s administration, via Attorney General Janet Reno, tried to deport a Mexican government official, Deputy Attorney General Mario Ruiz Massieu, who was wanted in his country on criminal charges. Fearing for his safety, Ruiz Massieu left Mexico after his brother was assassinated, entering the United States on a visa. But after failing to declare all the cash in his possession at the Newark, New Jersey, airport, he was arrested and detained. In Ruiz Massieu’s prosecution, U.S. State Department head Warren Christopher utilized a revised section of the INA originally created by the McCarren-Walter Act of 1952 —essentially the same law that Rubio is citing today to justify deporting Khalil. Christopher claimed that the United States was working to reform the Mexican justice system, and Ruiz Massieu’s continued presence in this country would harm that effort.
In New Jersey, a federal district court judge—who, in an odd twist of history, was Maryanne Trump Barry, Donald Trump’s sister—ruled in 1996 that the statute was unconstitutional. No one could obey it, Barry reasoned, since they could never know if their presence in the United States would harm foreign policy interests, given that foreign policy is confidential and ever-changing. She questioned whether the judiciary should so easily defer to the other two branches of government at the expense of due process, challenging the plenary power doctrine head-on. Her decision was appealed and bumped down first to immigration court, then to the Board of Immigration Appeals, where judges ruled they had no authority to second-guess the Secretary of State. Three months later, Ruiz Massieu committed suicide.
Not long after the New Jersey ruling, another case, this time at the Supreme Court level, frankly rejected the plenary power doctrine. It concerned Kim Ho Ma, a young immigrant who had committed crimes and was thus legally deportable. His case typified the skyrocketing of deportation orders against mostly young immigrant men, including green card holders, which began in 1996 under the Bill Clinton administration: the year the government began routinely ousting noncitizens for convictions as minor as for shoplifting, even if those convictions, like Ma’s, dated back years or decades.
Despite the government’s attempts, Ma could not be returned to his native Cambodia; the country did not accept deportees. For years, the U.S. government had kept him and hundreds of other Cambodians locked up in immigration detention, seemingly indefinitely. In 1998 Ma filed a federal habeas corpus petition, arguing that his detention was unconstitutional. The Ninth Circuit rejected the plenary power doctrine and ruled for Ma in 2000. And then, the following year, the Supreme Court ruled in the related case Zadvydas v. Davis that immigration detention could generally not last past six months. Legal scholars celebrated, hoping for a new day for immigrants’ civil rights.
That hope hit the wall of 9/11. In 2003 the Supreme Court ruled against another detained immigrant, Hyung Joon Kim, a Californian in his twenties who had arrived in the United States from South Korea as a young child. He had a green card, but he also had two convictions from when he was a teenager—one for breaking and entering, another for shoplifting—that made him deportable. Pending deportation, he sought a hearing to release him, and by legal implication thousands of people like him, on bond.
In a 5-4 decision, the Court refused, citing the plenary power doctrine in so many words, just three years after it had rejected it in Ma’s case. Writing for the majority, Chief Justice William Rehnquist stressed a ruling from almost three decades earlier, which noted that “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Rehnquist went on to claim that Congress was “justifiably concerned” about crime committed by immigrants. With that ruling, plenary power was here to stay. Now, it was no longer acceptable to use it to advance starkly racist laws, but it could still excuse a host of civil rights violations—so long as they were executed in the name of “national security.”
Fast-forward to the first Trump presidency. Days after his inauguration, he ordered a travel ban for people from seven countries, all with mainly Muslim populations. The executive order tracked language in the INA, which specifies that “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens.” At least one prominent Trump supporter favorably compared the ban to Japanese internment.
Almost immediately, the Muslim ban was challenged in lower courts as a violation of religious freedom. It was overturned as unconstitutional, based on evidence that Trump had exhibited frank animus toward Muslims: during his campaign, he had promised to create a database to track them and falsely claimed that thousands of them publicly cheered when the World Trade Center was bombed. In 2017, however, the administration presented a cleaned-up version, one scrubbed of language that could be construed as animus but that still prohibited entry from mainly Muslim countries. In hearing the case for the new order, the Supreme Court again allowed that Trump had a history of anti-Muslim animus, but this time, a majority of the justices ruled that the judiciary could not closely scrutinize a law enacted by Congress or the Executive if it claimed to protect national security. “The policy will be upheld,” the Court wrote, “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”
Now we are in Trump’s second term, with his risible yet ominous claim that all pro-Palestine campus activists are antisemitic (despite the fact that quite a sizable proportion of them are Jews). The INA statute that Marco Rubio has cited so far to justify Khalil’s deportation seems wholly unmoored from specific circumstances. How could Khalid possibly threaten U.S. foreign policy? He’s not the deputy attorney general of a large country. He just finished graduate school and has a pregnant American wife from Flint, Michigan, who’s a dentist. The irony is that it’s not he who is potentially harming the United States: it’s the Trump administration. What could be more adverse to the nation’s foreign policy interests than attacking fundamental elements of our politics which people in other countries deeply admire: freedom of speech, freedom of petition, freedom of assembly?
The Trump administration appears to be scrambling to find additional laws to use against Khalil. What they’ve got now is so vague that a judge with any sense will void the charges. The problem is that the first courts that Khalil may soon find himself in aren’t really courts, and the judges aren’t really judges—at least, not as most Americans understand those terms. The judges are appointed by and directly answerable to the Attorney General, and under pressure to accede in their rulings to the AG’s fiat. That’s because immigration courts are not part of the Judiciary. In 1940 they were removed from the Labor Department to the Department of Justice, whose main job is fighting crime and criminals. That transfer implied that immigrants were dangerous people—invaders, Trump now says—from whom the country needed protection.
The first Trump administration cemented that ethos by politicizing the immigration courts, imposing performance quotas on the judges in order to speed up deportations and hand-picking judges with backgrounds in prosecution and law enforcement. Not surprisingly, studies have shown that officials with this work experience order people deported at disproportionate rates. In addition, a study of immigration court case outcomes at the Board of Immigration Appeals published last year found numerous instances where judges “did not appear to understand the relevant legal principles, or applied them in a conclusory fashion, rather than engaging in a rigorous analysis based on the facts of the case and applicable law.” Those researchers also found significant bias against immigrants (though they were unsure whether it derived from incompetence or a frank preference for kicking people out of the country).
Immigration courts also make dramatically different rulings depending on where they’re located. In the New York City system, judges affirm claims for asylum and other relief most of the time. In the Jena, Louisiana, facility where Khalil is currently being held, all ten of its judges issue denials a majority of the time—hence why Khalil’s attorneys are fighting to get him out of there. That is much of what his current habeas case is about: bringing him back not just to his wife and lawyers, but to better courts. At one such court in Washington, D.C., a federal judge has expressed deep skepticism about government claims that it didn’t have to follow his order to turn back the airplanes taking Venezuelans from the United States, with no due process, to El Salvador’s “Terrorism Confinement Center,” a prison whose inmates are reportedly tortured and who, according to numerous photographs, resemble the Jews of Bergen-Belsen. In its defense of these renditions, the government has cited Harisiades v. Shaughnessy—the same case that tried to deport bric-a-brac dealer Dora Coleman.
On Wednesday, Khalil was partly successful in getting to better courts. A federal judge in New York ruled that his habeas case be moved to a district court in New Jersey—but did not rule on whether or not Khalil will be given a bond to leave the immigration prison in Louisiana. As of this writing, he has an immigration court hearing in that state on March 27. His case for bond is stellar: he has been accused of no crime, his home and pregnant wife are in New York City, he is not a flight risk—and perhaps more importantly, his case has attracted worldwide attention as well as extraordinary legal firepower to defend him.
If he returns to the East Coast, a New Jersey district court may throw out the immigration law charge against him altogether, which will keep him out of detention even during such time as the government may pursue him to the Supreme Court. If it comes to that, his fate will again depend on the extent to which the justices accept or reject the long history of plenary power. In the interim, however, he could be charged under yet another INA statute: the one ordering deportation for a noncitizen who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” If Rubio applies this section to Khalil, judges up and down the line will have to rule on it, too. By then, there could be many more campus activists in orange jumpsuits. Will there be courts by then? If so, will the plenary power doctrine be weaker than now? Stronger? Will there still be three branches of government? Or will we need a fourth—the streets?
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