Immigration symposium: The future of immigration exceptionalism

David S. Rubenstein is Professor of Law and Director, Robert J. Dole Center for Law & Government, Washburn University School of Law.

For anyone still wondering how President Donald Trump’s travel ban is possibly constitutional, “immigration exceptionalism” is the reason. The phrase captures the idea that special constitutional doctrines apply in immigration cases that don’t apply in other contexts. For example, under the Supreme Court’s infamous “plenary power doctrine,” immigration statutes that discriminate on the basis of nationality are generally reviewed under a lax rational basis standard. In stark contrast, a non-immigration statute that discriminates on nationality grounds would be subject to strict judicial scrutiny.

None of this is to suggest that immigration law should be treated exceptionally. That meta-question loomed especially large in October Term 2016. With several immigration-related cases on the docket, and Trump’s initiatives in view, many hoped the Supreme Court might (finally) tackle the plenary-power doctrine and its vestiges. Like terms before, however, this one ended with more questions than answers about the future of immigration exceptionalism.

Still, there is a real sense of something brewing. On the term’s final sitting day, the Supreme Court granted the government’s petition for certiorari in the travel-ban cases, and ordered re-argument in Sessions v. Dimaya (questioning how the Fifth Amendment’s void-for-vagueness doctrine maps onto immigration statutes) and Jennings v. Rodriguez (testing the constitutionality of prolonged immigration detention without a bond hearing). In each of these “to be continued” cliffhangers, the hyper-deferential doctrines of immigration exceptionalism may be decisive. And, when viewed collectively, they raise an intriguing possibility: a growing impulse on the court to decide – rather than avoid – questions of immigration exceptionalism. If so, the 2016 term could be remembered as a pivot year for immigration law. But towards what, is anyone’s guess.

In what follows, I sketch some preliminary thoughts, informed equally by what the Supreme Court did and did not decide this term. To begin with, the court’s rescheduling of Dimaya and Jennings suggests at least two things. First, the court is sharply divided on the constitutional issues presented. Second, Justice Neil Gorsuch may hold the deciding vote.

Jennings offers a glimpse of what may divide the Supreme Court. During oral argument, some justices expressed serious misgivings about applying the canon of constitutional avoidance. When applicable, the canon instructs judges to interpret statutes in ways that avoid serious constitutional problems. After argument in Jennings, the court ordered supplemental briefing to address the constitutional due-process question squarely. Understood in context, the court’s supplemental-briefing order carries more than usual significance. For decades, the canon of constitutional avoidance has been a favored tool of jurists to blur past first-order questions about what the constitutional principles are for immigration. If the court eschews the canon in Jennings, it will come face to face with that question.

Thus framed, there is potentially more at stake than a constitutional ruling on the detention statutes at issue. Depending on how the Supreme Court resolves the case – and the breadth of its reasoning – Jennings could provide a new beachhead for immigration exceptionalism writ large. As I have written at length elsewhere (with Pratheepan Gulasekaram), the court’s reasons matter. For instance, if the court were suddenly to declare that special rules should not apply to due-process claims in immigration, that could easily spill into adjacent settings, like equal protection. Alternatively, if the court were to uphold the statutes, with paeans to exceptionalism’s familiar tropes (e.g., national security, foreign affairs, national sovereignty), such a ruling could just as easily spill into other contexts – not only involving constitutional rights, but also separation of powers and federalism.

These thought experiments can likewise be applied to cases the Supreme Court did decide this term, such as Sessions v. Morales-Santana. In the first half of the decision, the court held that the citizenship statute at issue violated equal protection because it discriminated along gender lines. Despite this constitutional violation, the court provided no remedy. Instead, it held that Congress must decide whether to cure the gender disparity by “leveling up” (so that both fathers and mothers would be subject to the more demanding derivative-citizenship requirements) or “leveling down” (so that both fathers and mothers would be subject to the less demanding requirements). Morales-Santana triggers important questions for mainstream equal-protection doctrine. But my focus here is on its messaging for immigration exceptionalism.

Instructively, the Supreme Court applied heightened scrutiny – rather than the plenary-power doctrine – to test the statutory gender classification at issue. In doing so, however, the court provided scant reason why. As best I can tell, the court’s rationale turned on a debatable reading of its precedent decisions in Fiallo v. Bell and Nguyen v. INS. In short order, the court brushed Fiallo aside as an “immigration” case (i.e., one involving the entry and removal of noncitizens), as opposed to a “citizenship” case. And, although Nguyen involved a gender-discrimination challenge to a citizenship provision, the court distinguished that case because it spoke to a different statutory provision.

Be that as it may, the Supreme Court did not explain why these categorical distinctions are constitutionally or normatively salient. Perhaps the court is moving to a cut-bait approach to immigration exceptionalism. That idea would parallel the court’s decision this term in Ziglar v. Abbasi, which declined to extend Bivens claims to “new” contexts. Thus construed, Morales-Santana’s logic might be extended to the establishment-clause challenges in the travel-ban case. As historical luck would have it, the plenary-power doctrine has never been directly applied to that constitutional provision.

Tempting as that reading of Morales-Santana may be, it probably proves too much. Ziglar and Morales-Santana were decided within days of each other. If the Supreme Court had the same quasi-stare decisis idea in mind for both, we might have expected it to say so. The cut-bait logic also proves too little, and for that reason may be unattractive to immigration advocates moving forward. The plenary-power doctrine has been applied in countless settings – including racial and ideological bars to admission, admission and removal provisions tied to specific nationalities, extended detention of potential deportees, and numerous other contexts that, in the court’s own words, “would be unacceptable if applied to citizens.”

Seen in this light, an approach that cordons off the plenary-power doctrine from citizenship cases makes little headway into the corpus of immigration exceptionalism. Indeed, it could mark a setback. By carving an exception to immigration exceptionalism for “citizenship” cases, the Supreme Court may have indirectly reified the plenary-power doctrine’s application to a much larger swath of “immigration” cases.

It is too soon to know. But these general patterns – of doctrinal spillovers and spillunders – are par for the course. More pointedly, these dynamics explain immigration exceptionalism’s puzzling persistence. The canon is trapped in a policy feedback loop, whereby immigrant advocates, government lawyers, and judges invoke exceptionalism tropes for different ends, but with reifying effects. Consider, in this regard, the exceptionalism role-reversal in at least one aspect of the travel-ban litigation. Nationwide preliminary injunctions are not the norm. But, citing the Constitution’s naturalization clause (a fountainhead for the plenary-power doctrine), the U.S. Court of Appeals for the 9th Circuit and several of the plaintiffs’ and amici’s briefs in support argued for the special need for uniform immigration enforcement. The Supreme Court disagreed with the need for uniformity. But did it limit the injunction despite, or because of, immigration exceptionalism?

Returning to Morales-Santana for one last point: The fact that the Supreme Court decided the constitutional issue at all contributes to my earlier prompt about anti-constitutional avoidance. I can think of two general reasons why the court may have reached out to make a constitutional holding in this case. One reason is tied to mainstream norms, the other to immigration norms. But neither hypothesis bodes particularly well for immigrant interests moving forward.

For the constitutional mainstream, Morales-Santana was an opportunity to advance gender-equality norms in general. Ironically, however, whether the case will serve that cause may depend on whether immigration is exceptional. After all, champions of gender equality will want to argue that Morales-Santana’s right-without-a-remedy is an immigration aberration, with plenty of fodder from the court’s decision to support the contrast.

Alternatively, or in addition, the Supreme Court may have been keen to resolve whether the plenary-power doctrine applies in citizenship cases. But, if so, that venture into the exceptionalism thicket may have different implications. In prior years, the chances were at least reasonably good that the court would chip away at the plenary-power doctrine, or ignore it to the point of extinction. Morales-Santana is consistent with that narrative.

Projecting ahead, however, the impulse to decide exceptionalism issues may net different results vis-à-vis immigrant interests. National-security threats have galvanized nativist sentiment. Congressional gridlock on immigration reform has prompted the executive branch, states, and cities to take matters into their own hands. With the addition of conservative-leaning justices to the court, and spotty allegiance to constitutional avoidance, we may be on the brink of a new era for immigration exceptionalism.