Plenary Power Wording Paper for the Courts Topic

By Lindsay Harrison

Background

Our system of government has been interpreted by the Supreme Court in such a way that Congress and the Executive have plenary power over certain areas of governance. “’Plenary’ simply means full or complete. The Supreme Court has used this doctrine to say that in certain substantive areas such as immigration law the courts will not intervene because Congress and the executive - the "political branches" of government - have complete power.” Saito 03. There are several key areas of the law over which the Court has found the political branches to have plenary power: (1) Immigration, (2) Foreign Affairs, (3) Indian law, (4) U.S. territories, (5) Public lands, (6) Military bases, and (7) the District of Columbia.

The basis for my proposed resolution is the fact that plenary power, though complete, may be “subject to important constitutional limitations,” as the Supreme Court declared recently in Zadvydas v. Davis. Limitations on plenary power have been proposed since the inception of the doctrine, as the plenary power of the political branches has been subject to much consternation and debate. These limitations may be imposed on the basis of the U.S. Constitution, but many scholars also propose limitations imposed by application of international law. See Augustine-Adams 2005. Most recently, debates about plenary power have revolved around the need for the Court to limit plenary power to curb post-9/11 abuses, such as the detention and mistreatment of non-citizens. Another hugely important and current topic of debate is the rights of immigrants, which would be a large part of a plenary power topic since the plenary power doctrine prevents the Court at present from protecting many rights of immigrants.

A resolution requiring the Affirmative to impose limits on the political branches’ plenary power would provide the debate community with timely, rich literature on a wide range of topics. The heart of the resolution would be the separation of powers, a topic that frequently arises in debates but is infrequently debated with any depth. A plenary power topic would enable that depth. One of this topic’s advantages, incidentally, is that there is plenty of legal literature as well as political science literature about plenary power, so while it would remain a topic about the Courts, the community would not be limited to law review articles when researching the topic.

The topic would also appease members of the community interested in debating about individual constitutional rights as well as those members more interested in foreign affairs and foreign policy. I think it strikes a nice balance between those areas, all the while focusing debates on the authority of the Court vis-à-vis Congress and the Executive.

Proposed Topic Wordings

I am proposing 4 different wordings from which the Topic Committee might choose, though other permutations are also possible, as you will see.

I should say at the outset that I think the weakest of the proposed resolutions is the one requiring the Court to overrule/overturn its precedent because (a) the literature advocates limiting plenary power, but not so much by means of overruling precedent as much as by imposing new limitations, and (b) the CP debates on such a topic would be about procedure and not about substance and (I believe) would be substantially less interesting to debate.

I should also say that I believe all four of these resolutions fall within the topic that has been selected (Overturn Supreme Court Precedent) because even a resolution that does not explicitly require the USSC to “overturn precedent” but instead requires the USSC to limit a Court-created doctrine (like the plenary power doctrine) is, in a sense, a reversal of Supreme Court precedent.

Proposed Wording #1:

The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law.

This is the broadest resolution I propose. I think there is a natural limit on the resolution, in that Congress and the Executive have plenary power over only a limited range of areas. Accordingly, the only linguistic limitation within this resolution is the phrase “substantially limit,” which forces the Aff to defend something more than a mere de minimis modification to the plenary powers doctrine.

Proposed Wording #2:

The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law on the basis of the U.S. Constitution.

This resolution is similar to the first except that it forces the Aff to imposes a Constitutional limitation, as opposed to one based on International Law. Limiting plenary power on the basis of international law would then become the major Negative CP ground.

Proposed Wording #3:

The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law by overruling one or more of its precedents.

This resolution requires the Aff to specify the means by which the USSC limits the plenary power of the political branches and thus imposes a more meaningful limit on Aff plans than simply requiring a “substantial limit” on plenary power. I am not certain that such a limit is necessary, but it may be desired by members of the community seeking to force the Aff into more predictable territory.

If you wanted to include a list of precedents, you could include: The Chinese Exclusion Case, 130 U.S. 581 (1889) (immigration); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (Indian law); The Insular Cases, including Downes v. Bidwell, 182 U.S. 244 (1901) (colonies/territories); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (foreign affairs), Knauff v. Shaughnessy, 338 U.S. 537 (1950) (familial rights of immigrants).

Proposed Wording #4:

The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more of the following areas of the law: immigration, foreign affairs, public lands, U.S. territories.

I am proposing this resolution, which omits Indian law, because I know that the community debated an Indian topic quite recently, and this would avoid having redundant debates.

Affirmative and Negative Ground

Affirmatives would have the flexibility to choose among a wide range of advantages and case areas – from individual rights being threatened by the plenary power over immigrants, to foreign relations being impaired by the exercise of plenary power over foreign affairs, to sovereignty of Indian tribes that is undermined by plenary power over Indian law, etc.

One major advantage of this resolution compared to other Courts resolutions is that it limits the Congress and Executive CP. Congress and the Executive couldn't deprive themselves of plenary power because it is a wholly judicial doctrine. Furthermore, much of the advantages to Affirmatives on this topic would stem from the abolition of the authority that is plenary power, so a CP to simply have Congress or the Executive stop exercising that authority would not gain any of the advantages from abolishing the doctrine itself, which is the object of much scrutiny in the legal and political science literature.

Yet there is plenty of Negative ground as well. The Affirmative would be forced to defend a limitation on plenary power rather than merely a modification of policies governing immigrants, foreign affairs, Indians, etc., and forcing the Affirmative to defend judicial limitations on plenary power will provide the Negative with plenty of CP and disadvantage ground pertaining to the courts. Any disadvantage to Judicial Activism, to limiting Presidential Powers or Congressional Power, political disadvantages (with the link being that a President rendered weaker by the Court would constitute a huge political loss), etc. I think the CP ground could also be so much more interesting than the traditional Congress/Executive CP – a CP to do the plan on the basis of international law rather than Constitutional law would allow in-depth international law good/bad debates and foreign policy disadvantages. In addition, I think the proposed resolutions would inherently give rise to good case debates, as there is far from uniform opinion as to how plenary power might be limited and as to whether it should be limited by the Court at all.

Cases

Some examples of Aff cases:

“Trust” authority over Indian tribes: The plenary power doctrine is the legal rationale for allowing the federal government control over indigenous peoples through its exercise of "trust" authority, by which American Indian nations are robbed of their resources and rendered the poorest sector of the country

Post-9/11 Detention of Noncitizens: The plenary power doctrine is the basis for detaining and arbitrarily deporting noncitizens, most recently thousands of young men of Middle Eastern origin not accused of any crime

Immigrants Rights Cases: There would be a wide variety of cases providing constitutional rights to immigrants which are currently barred because of the plenary power doctrine. Examples of cases would include providing the right of an immigrant to have his or her spouse immigrate (not currently protected because of United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)) and ruling that racial classifications in the immigration context are unconstitutional (not currently the case, see Chin 98).

Puerto Rico: The plenary power doctrine is the basis for continuing to refuse to allow Puerto Ricans a binding vote on their relationship with the United States. I suspect that debates about colonialism would be really interesting to policy folks and more critical-minded debaters.

Guam: Same as Puerto Rico, but with different advantages.

District of Columbia: Restore home rule for D.C. by limiting Congressional plenary power over the District.

Overturn Curtiss-Wright: Curtiss-Wright is the Supreme Court decision that created plenary Executive power over foreign affairs, and is currently the basis for permitting the executive to detain noncitizens in Guantanamo, as well as a host of other post-9/11 actions.

Citations

If you are interested in reading more, here are several citations from which you learn more about the PP doctrine and the types of Aff and Neg arguments that might arise in a PP topic:

Natsu Taylor Saito, The Plenary Power Doctrine: Subverting Human Rights in the Name of Sovereignty, 51 Cath. U. L. Rev. 1115 (2002). This article is rich with Affirmative possibilities. Highly recommended*** An excerpt:

“Nothing in the Constitution explicitly gives the federal government such power. Explanations and justifications of the exercise of plenary power are confused and sometimes contradictory, but they boil down to the notion that it is an extraconstitutional power inherent in sovereignty, which the U.S. government acquired upon becoming a recognized state. Thus, the theory goes, the government's powers are limited by the Constitution with respect to domestic policy--its relations with its political subdivisions and its citizens--but unrestrained in its dealings with outsiders or its control over its domestic population in the context of defending against outside threats. Are there no limits on the exercise of this power?

Justifications for the doctrine invoke the need to deal effectively with other sovereigns, so one would suppose that its exercise is limited by the response of other sovereigns and, presumably, by the international law that governs relations between sovereigns. But, in fact, plenary power is used against those over whom the United States exercises essentially complete control, in situations in which the United States neither respects their sovereignty nor extends the usual protections of domestic or international law. The harsh consequences of the plenary power doctrine are generally ignored or dismissed as aberrations. Examination of the plenary power doctrine as a whole, however, reveals that it is not an exception to a general rule of conformity with human rights law but a systematic denial of both domestic and international protections to those who most need them. As noted above, the United States justifies its failure to incorporate international law more specifically by arguing that domestic law provides more protection of basic human rights. However, under the guise of the plenary power doctrine, the courts not only refuse to apply the basic protections "guaranteed" by the Constitution, but they also refuse to apply international law, leaving the basic rights of immigrants, American Indians, residents of U.S. "territories," and other sectors of the American population essentially unprotected by anything except the goodwill of Congress. The jurisprudential rationale for the plenary power doctrine is the United States' sovereignty, and thus the United States has, in effect, returned to the premise it explicitly rejected at Nuremberg: the most fundamental human rights acknowledged in international law can be overridden by domestic law.

This article presents a brief overview of the application of the plenary power doctrine in U.S. jurisprudence and considers its implications for U.S. compliance with international law. Section II summarizes the cases of the late 19th and early 20th centuries that first articulated the plenary power doctrine with respect to American Indians, immigrants, and colonial subjects. Section III considers some of the ongoing violations of international law that result from the continued application of the plenary power doctrine in each of these areas. Section IV concludes that enforcement of international law, not simply extension of constitutional protections, is necessary to prevent or redress such violations.”

Kif Augustine-Adams, The Plenary Power Doctrine After September 11, 38 U.C. Davis L. Rev. 701 (2005) (providing a nice overview of how the PP doctrine has been used to justify Executive policies post-9/11). An excerpt:

“Prior to September 11, 2001, it seemed improbable that Congress would again exercise its plenary power over immigration to exclude immigrants based on race, as it did in the nineteenth century Chinese Exclusion Acts. The Exclusion Acts and Supreme Court case law upholding them spawned the plenary power doctrine, a doctrine which, as its name implies, articulates Congress' unfettered power over immigration. As the Supreme Court stated in Mathews v. Diaz, "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."

Earlier, in 2000, Professor Gabriel Chin sounded the death knell of the plenary power doctrine. He argued that it was highly unlikely that Congress would ever again use its plenary power over immigration to exclude noncitizens on express racial grounds; thus, the Supreme Court was unlikely to ever encounter an opportunity to definitively overturn the doctrine. Given the terrorist attacks of September 11, wars in Afghanistan and Iraq, and associated political responses, Chin's assessment appears decidedly optimistic. It is no longer a remote possibility that Congress would consider discrimination in immigration legislation, discrimination based on race, religion, or other criteria that would be unconstitutional if applied to citizens, but which the plenary power doctrine allows when noncitizens and immigration are at issue.

For example, as a matter of administrative law though not congressional mandate, the United States Department of Justice instituted, in mid-2002, an immigration registration system that required nationals of certain Arab and Muslim countries to be fingerprinted and photographed at the U.S. border prior to entry. [FN4] When responding to criticism of its proposed registration requirement, the Department of Justice invoked the plenary power doctrine to "strongly disagree that the rule is invidiously discriminatory." [FN5] Relying on numerous Supreme Court cases, the Department stated bluntly, "The political branches of the government have plenary authority in the immigration area."”

Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The ‘Plenary Power’ Justification for On-Going Abuses of Human Rights, 10 Asian L.J. 13 (2003) (providing a history of the plenary power doctrine in immigration law and criticizing its enduring legacy). An excerpt, with footnotes omitted:

“The plenary power doctrine was first articulated in the Chinese exclusion cases to allow the government to exclude a disfavored minority who were portrayed as outsiders by virtue of their race, ethnicity, national origin or culture, and to deny them otherwise applicable protections of law. In so doing, the Supreme Court called upon the powers it claimed to be inherent in sovereignty, and portrayed the government's actions as essential to its ability to protect the country against external threats. These justifications have been called upon to exclude other disfavored groups of noncitizens, including those deemed a threat by virtue of their presumed ideology or political affiliations, and to exercise unrestricted power over American Indian communities and the residents of external U.S. colonies.

The law embodied in the Chinese exclusion cases is very much alive and well today. To quote Professor Henkin again, “[The] principal doctrines announced in Chinese Exclusion have come back to haunt us one hundred years later. The courts . . . still hold that the Constitution provides no protection against abuses in the regulation of immigration - abuses that include arbitrary detention depriving thousands of their liberty without due process of law. International human rights law has developed to help prevent such harms, but the executive branch has not seen fit to respect this law, and the courts have not yet ordered the executive to do so.”

Even if, at this moment in history, the unlimited powers given the government under the plenary power doctrine are focused on "outsiders" who are not of Asian descent, we know that they can, and often have been, turned back on Asian Americans. We cannot afford to sit back and feel comfortable with the "progress" made by some of our communities, but must use the knowledge we have gained from our experiences with American law to effect the kinds of structural changes necessary to make all who are potentially deemed "Other" more secure.

When we see the plenary power of the government being asserted in some of the ways described above, including the government's current treatment of Muslim and Arab American immigrants, it is not enough to respond by advocating better laws or more humane administrative policies. As lawyers and legal scholars, we have a responsibility to call into question the broader framework of American jurisprudence that allows such injustices to be perpetuated and to insist that the U.S. courts enforce the protections spelled out, not only in the Constitution, but in international law as well.”

Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002)

Natsu Taylor Saito, Asserting Plenary Power Over the “Other”: Indians, Immigrants, Colonial Subjects, and Why U.S. Jurisprudence Needs to Incorporate International Law, 20 Yale L. & Pol'y Rev. 427 (2002)

Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994)

Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998)

Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853 (1987)

Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens' Rights, 41 Vill. L. Rev. 725 (1996)

Philip Monrad, Comment, Ideological Exclusion, Plenary Power, and the PLO, 77 Cal. L. Rev. 831 (1989)

Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990)

Cornelia T.L. Pillard & T. Alexander Aleinikoff, Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making in Miller v. Albright, 1998 Sup. Ct. Rev. 1 (1999)

Victor C. Romero, The Congruence Principle Applied: Rethinking Equal Protection Review of Federal Alienage Classifications After Adarand Constructors, Inc. v. Peña, 76 Or. L. Rev. 425 (1997)

Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087 (1995)

Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform, 7 Stan. L. & Pol'y Rev. 35 (1996)

Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005)

Kal Raustiala, The Geography of Justice, 73 Fordham L. Rev. 2501 (2005)

José D. Román, Trying to Fit an Oval Shaped Island Into a Square Constitution: Arguments for Puerto Rico Statehood, 29 Fordham Urb. L.J. 1681 (2002)

Note, Democracy or Distrust? Restoring Home Rule for the District of Columbia in the Post-Control Board Era, 111 Harv. L. Rev. 2045 (1998)

Caroline S. Palmer, Waiting for Democracy: Congress, Control Boards and the Pursuit of Self-Determination in the District of Columbia, 19 Hamline J. Pub. L. & Pol'y 339 (1997)