Constitutional Weirdness of Immigration Law and Why It Is the Way It Is

Rodriguez, Calder

Undergraduate Honors Thesis

Constitutional Weirdness of Immigration Law and Why It Is the Way It Is Public Deposited

Analytics

Download PDF

Citations

Citeable URL: https://scholar.colorado.edu/concern/undergraduate_honors_theses/g732db31p

Abstract

This paper investigates the field of immigration law, specifically in the context of the US Supreme Court, and finds it to be a constitutional oddity. It begins by examining the text of the Constitution itself to establish a lack of any particularly useful constitutional basis for the federal government and the Supreme Court to use to ground immigration law. Then, it examines the history of how the Court has, ever since the Chinese Exclusion Cases of the late 19th Century, conducted itself in the field, identifying the plenary power doctrine—the Court’s longstanding stance that immigration is an exceptional field of law largely immune from judicial review on the basis that it is a core aspect of national sovereignty—at the center of America’s immigration jurisprudence, even though it has been whittled away to a very limited degree. It further details the ideological ramifications of the field, including arguing that conservative originalist doctrine offers no useful solution, before going over what has ever been involved when the Court has found an aspect of immigration and naturalization law to be unconstitutional, finding that it’s largely limited to attempts by the federal government to strip somebody of citizenship and attempts by exclusively state governments to discriminate against aliens. I then look at the application of strict scrutiny review in immigration law as both what the Supreme Court has refused to do and as what would return it to the constitutional mainstream, while also considering the implications of such a major doctrinal shift and thus concluding that, barring a major ideological shift on the Court or a particularly egregious case of animus which forces the Court’s hand, the status quo is likely to remain in place for the foreseeable future.

Creator