Plenary Power in the Modern Administrative State

Abstract

For the past quarter century, the “plenary power” doctrine of immigration law—under which courts suspended ordinary standards of judicial review to defer to the political branches on questions relating to the exclusion, detention, and deportation of noncitizens—has been in decline. The conventional account attributes this development to the expansion of constitutionally-protected individual rights across public law cases. This article assesses changes in immigration law from a different perspective, one having less to do with individual rights than with constitutional structure. It focuses on the role that delegation concerns have played, contextualizing the judiciary’s willingness to review immigration decisions within a broader administrative law project to strengthen judicial checks on the growing authority of agency officials across the regulatory state.

This perspective helps explain one of the enduring puzzles of contemporary immigration law—why courts continue to defer to immigration decisions in some cases but not in others. Rather than rejecting the notion of a plenary power outright, courts have merely concluded that such power cannot freely be delegated to unelected agency officials. Moreover, it suggests that the doctrinal retreat from plenary power principles will not always coincide with noncitizens’ interests. A theory of judicial review premised on delegation concerns rather than individual rights offers little protection against actions by Congress and perhaps also the President. Moreover, where the relevant actor is an agency official, judicial scrutiny rooted in structural concerns may be as skeptical of administrative decisions favoring noncitizens as those harming them.