Plenary Power: Should Judges Control U.S. Immigration Policy?

Federal policy on immigration has been founded on the “plenary power doctrine,” which holds that the political branches — the legislative and the executive — have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. But despite the fact that the courts have affirmed the plenary power doctrine countless times since the 19th century, there is a movement underway to erode political-branch control over immigration in favor of a judge-administered system based on the implicit idea that foreigners have a “right” to immigrate. This Backgrounder examines the history of the doctrine, the challenges to it launched by supporters of mass immigration, and some possible responses.

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