Plenary Power in the Modern Administrative State

Abstract

Immigration law has undergone a seismic shift. In the past, courts categorically denied review over decisions to exclude, deport, and detain noncitizens, reasoning that the political branches possess “plenary power” to decide such questions without judicial constraint. Today, by contrast, courts not only exercise review over such decisions, they frequently reverse them. This article develops a theoretical account of this shift rooted in non-delegation concerns. It challenges the prevailing scholarly narrative, which attributes the demise of plenary power to growing judicial respect for the rights and interests of aliens, contending that modern immigration jurisprudence is better understood as a response to concerns relating to the scope of delegated administrative discretion. Courts have not altered their assessment of the cognizability of noncitizens’ interests; what has changed is their assessment of whether the unreviewable power to regulate immigration is delegable to agency officials. A non-delegation theory of plenary power sheds new light on the scope and limits of the doctrine today. The denial of plenary authority to agency officials, who are responsible for the vast majority of immigration decisions, results in the effective demise of the doctrine in the broad run of cases. At the same time, it leaves intact the fundamental core of the doctrine, precluding judicial scrutiny over decisions rendered directly by Congress or the President, regardless of their impact on noncitizens’ rights.