Chilton and Lakier: The Potential Silver Lining in Trump’s Travel Ban

The Potential Silver Lining in Trump’s Travel Ban

When the Supreme Court considers President Trump’s travel ban in October, the justices will have plenty of ways to avoid ruling on whether it exceeded his constitutional authority. They could, for example, dismiss the case as moot because the administration’s 90-day moratorium on issuing visas to people from the banned countries will have run its course.

But if the justices decide to rule on the constitutional questions posed by the case, they will have the opportunity to weigh in on the long-standing legal principle known as the “plenary power doctrine,” which gives the president and Congress extraordinary power to take action when it comes to immigration law. The court should seize this opportunity to once and for all rid our legal system of this outdated doctrine.

The plenary power doctrine dates to 1889, when the Supreme Court unanimously upheld a law that barred Chinese laborers from returning to the United States after leaving the country. The case, Chae Chan Ping v. United States, has come to stand for the proposition that the political branches enjoy extremely broad discretion over whom to admit to the United States and that courts should not scrutinize their choices too closely.

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