The recent executive order suspending immigration from seven predominantly Muslim countries is only the opening shot in what is likely to be a sustained effort by the Trump administration to curtail Muslim immigration to the United States. Speaking indiscreetly, Rudolph Giuliani told the world that then-President-elect Trump had asked him and former Attorney General Mukasey for legal advice about how to bar all Muslim immigration. The president and the men who have his ear have often said they believe the religion of Islam is at war with what they are pleased to call “Judeo-Christian civilization,” and that all who believe in Islam are therefore suspect as potential enemies of the United States until proven otherwise. While President Trump’s first effort is limited in duration and confined to countries excluded from the visa waiver program, it is likely that the administration is exploring the full extent of its legal resources to make Islam a ground either to exclude Muslim immigrants as such or to single them out for what Trump has called “extreme vetting.”
At some point, the legal challenges to these efforts are going to run up against the “plenary power” doctrine, which is the constitutional bedrock of American immigration law. First set out by the U.S. Supreme Court in the 1889 Chinese Exclusion Case, the doctrine has two components. First, it finds the power to exclude foreigners not in any specific provision of the Constitution, including the Naturalization Clause of art. I, sect. 8, clause 4, but in the sovereignty of the United States as an independent power under international law. Second, the doctrine allocates authority to decide the terms on which that power will be exercised primarily to Congress and secondarily to the president, as a matter of political judgment and without judicial check. The plenary power doctrine was reaffirmed by the court as recently as 2015.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
