“The Invention of Immigration Exceptionalism,” published in November by Adam Cox in the Yale Law Journal, runs 117 pages. But its thesis is as succinct as it is profound: the prevailing view of American immigration law—that it’s always been insulated from constitutional scrutiny—is wrong.
Cox, who is Robert A. Kindler Professor of Law, is writing about the so-called plenary power doctrine. Routinely invoked by courts for years, the doctrine accords enormous deference to the legislative and executive branches of the federal government when they act in the area of immigration. Given the political paralysis that has left Congress unable to pass major immigration legislation since the 1980s, a succession of presidents has been able to act alone—and virtually unchecked—in the area.
The notion of immigration exceptionalism, Cox notes, is widely believed to derive from a series of US Supreme Court cases from the 1880s and 1890s that exempted immigration policy from judicial review. But Cox methodically dismantles this reading of those cases, demonstrating that to the contrary—and for much of American history—the Court has given immigration matters the same kind of constitutional scrutiny as it has other administrative law cases. Far from being exceptional, Cox writes, “American immigration law was, for a very long time, ordinary public law.”
A pair of Supreme Court rulings in the 1950s distorted earlier precedent, Cox says, and planted the seeds of what he calls the “myth” of immigration exceptionalism, including its supposed late-19th century origins. A misleading narrative developed from there, reaching its apotheosis in recent years in the Roberts Court. Cox writes: “The conventional account of the immigration plenary power doctrine and its creation—reiterated over the last several decades in casebooks and court filings, in countless academic articles and judicial decisions—supplies the lens through which almost everyone views immigration law today.”
His own early work, Cox notes “was no exception.” He adds, “My views have clearly changed.” We asked Cox how that change came about, and how abandoning the plenary power doctrine could transform immigration law.
Describe how you came to see the plenary power view as wrong. Was it an “Aha!” moment or something more gradual?
It took me a long time to develop the core idea in the paper—that our standard account of the so-called plenary power is fundamentally wrong. Maybe an embarrassingly long time; I realized recently that my first notes for this project date back more than a decade.
That said, there was definitely an “aha” moment. Back then I was teaching at the University of Chicago, and conversations with students in my immigration law class led me to start reading the lawyers’ briefs in these canonical 19th century immigration cases. As soon as I started reading, I realized something was amiss. The way that we all were teaching and thinking about the cases bore little relation to the way the lawyers actually argued them at the time. And that realization sent me searching for answers and, eventually, led me to realize that the idea that those nineteenth-century cases invented an immigration “plenary power” was a myth.
What reaction have you gotten to the article?
The reaction to the article has been heart-warming, and has made me happy that I stuck with the project over the years. I had long had a central worry about the project: I feared that it would be hard—maybe impossible—to persuade readers of my central thesis, because pretty much all of us had, for more than a generation, assumed the correctness of the standard story about the plenary power’s invention. Given that worry, it’s been great to see how carefully folks have read the paper and how generously they have engaged with it. That response makes me hopeful that the piece might help spark some fundamental changes in the way all of us—legal scholars, historians, practicing lawyers, and perhaps even judges—talk about immigration law.
You argue against the standard plenary power doctrine, yet you’ve also coauthored a book arguing that the president has tremendous power over immigration policy. How did you end up holding both of these views?
Most people who assert that the president has massive power over immigration policy argue that the plenary power doctrine is the root of that authority. Indeed, nearly every immigration-related executive order signed by President Trump upon his inauguration made this connection explicit.
But in my view, it isn’t some constitutional plenary power that gives the president so much authority over immigration. That power has grown from two other sources: from Congress, which has spent decades delegating more and more immigration authority to the executive branch; and from our massive shadow immigration system, which has left more than 11 million people without status and, consequently, subject to massive immigration enforcement bureaucracy that is supervised by the president. Thus, I ultimately see my book and this paper as complements: explaining the way in which the president became our immigration policymaker-in-chief, but reinforcing the reality that he is nonetheless bound by both the Constitution and laws passed by Congress.
You write that the plenary power doctrine “is responsible for the very worst parts of immigration law today.” What are you referring to?
Today, the most troubling parts of immigration law are the occasions when courts accept the idea that bedrock constitutional values can just be ignored when it comes to immigration policy. An invented doctrine of exceptionalism is the only way to do that—to conclude that open racial or religious discrimination would be permitted in our immigrant admissions policies, or to conclude that people detained by federal officials have no legal right to go to court to test the legality of their detention. It is a bizarre world in which alleged enemy combatants held outside the United States at Guantanamo Bay have greater constitutional rights to challenge the legality of their confinement than an asylum seeker being held by immigration authorities in Texas. And yet that is the legal world the modern plenary power doctrine has given us.
If a majority of the Supreme Court were to adopt your view and jettison the plenary power doctrine, what would the implications be?
The first implication is that we would return to a world in which immigration was treated like other areas of law, subject to the same rules. This would guarantee noncitizens in the United States the protection of the same core constitutional values —such as free speech and prohibitions on discrimination—that protect those of us who are citizens. It would be clear that the government couldn’t, as the Trump administration is now threatening to do, deport people because of their speech.
It would also allow us to stop fighting over the boundaries of “plenary power.” Whenever you create an exceptional legal domain, every legal dispute becomes a battle over whether you are in that exceptional domain, with its special rules, or outside of it. Those battles distract from more important and difficult questions that courts should instead be confronting when they think about the legal regulation of American immigration policy.
What is the most likely reason courts may continue to adhere to the plenary power doctrine in immigration cases even in the face of your article?
I’m a big proponent of the view that law professors are often terrible court watchers, so I’m not sure that I have any great predictions about why courts today might choose to ignore the powerful historical evidence in the article.
That said, one challenge in this area is stems from the fact that, for all the things that Democratic and Republican administrations disagree over about immigration law, the one thing that unites them is that they all uniformly resist legal developments that would afford immigrants more constitutional rights. So whether the White House was occupied by Barack Obama or George Bush, or by Joe Biden or Donald Trump, the Department of Justice has always argued for a pretty maximalist understanding of the plenary power doctrine. I don’t expect that to change anytime soon, and that’s a real obstacle to courts taking a different path.
Posted March 13, 2025