Academic highlight: Johnson on the demise of immigration exceptionalism
Kevin Johnson, who covers the Court’s immigration docket for this blog, has posted an article analyzing trends in Supreme Court immigration cases over the last five years. Although the Supreme Court has frequently departed from the normal rules of constitutional and statutory interpretation in immigration cases, Dean Johnson’s study of the 2009 through 2013 Terms suggests that “immigration exceptionalism” may be on its way out.
One clear example of immigration exceptionalism is the “plenary power” doctrine, under which the Supreme Court has given Congress unusual leeway in regulating immigration. The Court first invoked that doctrine 125 years ago in Chae Chan Ping v. United States to bar judicial review of federal laws excluding Chinese immigrants from the United States. In recent years the Court has retreated from that position, but it has never explicitly abandoned the plenary power doctrine. After closely analyzing the Supreme Court’s immigration decisions from 2009 through 2013, Johnson concludes that the Court has “slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism,” including its previous reliance on the plenary power doctrine, bringing “U.S. immigration law into the legal mainstream.”
In addition to this insight, Johnson’s article provides a thorough review of the major immigration cases over the last five years, such as Padilla v. Kentucky (holding that a noncitizen could raise an ineffective assistance of counsel claim based on an attorney’s failure to accurately inform him of the possible immigration consequences of a criminal conviction) and Chamber of Commerce v. Whiting and Arizona v. United States (addressing whether federal immigration laws preempt state laws regulating non-citizens). Immigration constitutes a surprisingly large percentage of the Court’s docket — the Court heard five immigration cases in the 2011 Term alone — and thus Johnson concludes that the “Justices consider immigration to be an important national issue worthy of attention.” Happily for readers of SCOTUSblog, he will continue to analyze the Court’s immigration decision for us in the years to come.