Introduction [double dagger]
In August 1994, thousands of Cuban citizens put to sea in a flotilla of rafts, hoping to reach the United States.(1) Many did, and were released into our country under long-standing practices.(2) Faced with a rising number of refugees, the Clinton Administration instituted a policy of detention.(3) Those who managed to reach our shores would be confined in detention centers in the United States; others would be interdicted on the high seas and held at the United States Naval Base at Guantanamo Bay, Cuba and, for a time, at U.S. facilities in Panama.(4) While our government clearly needed to respond quickly to this crisis, the Administration's policy committed our country to incarcerating thousands of refugees for an indefinite period of time.(5) How, one might ask, does our President have the power to order the detention of people without a criminal trial? Can they be confined forever? And what of the Cubans who came here in the 1980 "Mariel" boatlift? Fourteen years after their arrival, over a thousand are detained in prison facilities in the United States because Fidel Castro will not take them back and our government will not let them go.(6) How long may they be held?
This Article addresses the treatment of people at our door. Our government attempts to return noncitizens to other countries in one of two fashions, depending upon territorial standing. "Exclusion" is the mechanism to keep out aliens who seek admission to the United States from outside the country. "Deportation" is the procedure to remove aliens who are already in this country.(7) The rights that aliens have in these processes depend upon their classification as "excludable" or "deportable." Under current law, aliens have no constitutional rights with respect to their exclusion. They are deemed to be outside of our borders and not entitled to the protection of our domestic laws, including the Fifth Amendment's Due Process Clause.(8) Deportable aliens, on the other hand, are considered to be in this country, and they are entitled to the protections of the Constitution.(9) The distinction is driven largely by the assumption that people already in the United States are likely to have strong ties to this country. Thus, when the government endeavors to remove these people, it is thought that they deserve a different process than those aliens who seek entry from outside our land.(10)
In a simple world, these broad categories might be perfectly rational. Territorial standing might be an easy way to determine whether people have a strong connection to the United States or a substantial interest in admission. Aliens ordered excluded from this country would promptly return home. But the world is not so simple. Many "excludable" people at the border have family in the United States or a substantial interest in admission. Many aliens in the deportation process, on the other hand, have entered illegally, have no family in the United States, and have no legitimate interest in remaining here. Also, sometimes people ordered excluded from our country cannot return home because their countries of origin will not accept them. Some, like the Mariel Cubans, are detained in federal prisons for years. Because these aliens are considered "excludable," they have few rights even though our government is incarcerating them inside the United States.
Although one might question whether aliens' rights ought to be determined by territorial standing, courts have continued to give effect to the territorial distinction. One reason is that the judiciary generally defers to the executive in immigration matters. Courts have come to view the federal immigration authority as inseparable from the foreign affairs power. In no other area, the Supreme Court tells us, does the federal government have more power.(11) Thus, as long as the executive acts within the broad boundaries set by Congress, the judiciary will generally defer to executive decisions in immigration matters. The concepts of full federal authority and judicial deference are commonly called the "plenary power doctrine." The plenary power doctrine and the rule of territorial standing are exemplified by two leading Supreme Court decisions. The two cases, United States ex rel. Knauff v. Shaughnessy,(12) and Shaughnessy v. United States ex rel. Mezei,(13) hold that, with respect to admission and detention, whatever process the government affords excludable aliens is due process of law.(14) As part of its examination of the plenary power doctrine and the principle of territorial standing, this Article discusses the Knauff and Mezei cases in detail.
Part I traces the history of the territorial distinction and of the plenary power doctrine and shows that our current doctrines are not necessarily required by our past. Part II tells the full stories of Ellen Knauff and Ignatz Mezei. The Court decisions upholding the government's actions in their cases are well-known. Most people are unaware, however, that after the Supreme Court decided their cases, Congress sought to assist Ellen Knauff and Ignatz Mezei, and the press upbraided the government's actions. Knauff and Mezei were both eventually released into the United States. In addition to relating an important part of our history, this section of the Article demonstrates the public's ambivalence about the plenary power doctrine and the rule of territorial standing and shows the value of a hearing. Part III of the Article traces the impact of the Knauff and Mezei decisions and argues that these rulings are inconsistent with more recent developments in immigration and constitutional law. Part IV sets forth a normative claim, that all people at or within our border - or detained by our government - ought to be protected by the Due Process Clause, and that the courts should not defer to the executive in all immigration matters. In addition, this section offers an alternative (and more limited) model of judicial deference, the political question doctrine. Finally, Part V addresses the consequences that would follow if we were to abandon the territorial distinction and acknowledge that all people at our door are entitled to the protection of our laws.
The Growth of the Plenary Power Doctrine and
the Principle of Territorial Standing
A. The Constitution and Early Claims of
Federal Immigration Authority
The plenary power doctrine is a collection of several separate but related principles: first, that the immigration authority is reposed in the federal government and not the states; second, that the authority is allocated in some fashion between the executive and legislative departments of the federal government; and, third, that the judicial branch has an extremely limited role in reviewing the executive's immigration decisions if, indeed, the judiciary may review those decisions at all.(15) The executive/legislative and the judicial deference prongs of the doctrine were not developed until late in the nineteenth century. Until that time there was great uncertainty whether the immigration power resided with the federal government at all.
A primary reason for the uncertainty was that the United States Constitution does not expressly grant the federal government the power to exclude (or deport) aliens. Perhaps, surprisingly, the Constitution contains only two plausible references to immigration. The Naturalization Clause gives Congress the power to establish "a uniform Rule of Naturalization."(16) But naturalization is different from immigration; naturalization is the process of making citizens of those who have already emigrated to the United States.(17) Thus, the Naturalization Clause has generally been construed only to permit Congress to describe who may become citizens.(18) The only other plausible reference to immigration in the Constitution is the clause barring Congress from prohibiting, prior to 1808, "[t]he Migration or Importation of Such Persons as any of the States now existing shall think proper to admit."(19) This clause has been interpreted only to forbid Congress from outlawing the importation of slaves during the nation's first twenty years.(20)
Another reason for the uncertainty about federal immigration authority was the issue of slavery. During the antebellum era, a number of states passed legislation restricting the migration of free Blacks, both from other states and from abroad.(21) Several states also enacted laws barring the entry of indigent or diseased immigrants or immigrants who had been sentenced to "transportation" by a foreign country.(22) If the federal government was deemed to possess the exclusive power to control immigration, states might have been forced to admit free Blacks and immigrants whom the states sought to exclude. Until the late 1800s, Congress simply refrained from passing immigration legislation,(23) and thus avoided a conflict with the states over the authority to control immigration.
Given Congress's inaction, the power to control immigration was first tested in disputes involving assertions of state authority. In the Passenger Cases, the Supreme Court struck down two state laws that imposed taxes upon vessel owners for each alien passenger arriving in the ports of the states.(24) The Court split five to four. Only three of the five Justices in the majority found that the federal government, not the states, had the power to exclude aliens.(25) All four dissenting Justices ruled that, under the Constitution, the states retained the power to exclude aliens.(26) Although the exact basis for the majority's decision is difficult to determine, later decisions in accord with the Passenger Cases struck down similar state laws as interfering with foreign commerce (even though the slavery issue had been resolved by that time).(27) In the late 1800s, Congress became active in the field, passing a law that levied a federal duty for each alien passenger arriving in the United States from a foreign...