Plenary Power Flashcards
Jus soli theory of citizenship
tied to territory
Critiques of jus soli
- Territory is arbitrary
- Subject to abuse
- Doesn’t reflect real ties to the US
Jus sanguinis theory of citizenship has implications for __-
military abroad
Jus sanguinis prioritizes __
mothers over fathers
Jus sanguinis is subject to __
statutory rules
case about birthright citizenship
Wong Kim Ark
Wong Kim Ark facts
denied entry because of Chinese Exclusion Act even though born in US
Jus soli is embodied in __
14th amendment
Under US law not all US nationals are ___
US citizens (American Samoa)
All children ___ acquire citizenship at birth
born in US and subject to jdx of US at time of birth
Govt argument in WKA
common law jus soli superseded by Chinese Exclusion Act and jus sanguinis
WKA held that 14th amendment subject to narrow exceptions like __
children of enemies/diplomats
WKA decision is filled with rhetoric that suggests if Ark is denied citizenship ___
may also be denied to children of white immigrants
WKA held that acts of congress cannot __
exclude Chinese persons born in the US from clear words of the constitution
The Constitution says the federal govt is one of ___
enumerated powers
It is controversial that the federal govt powers cover immigration because ___
no clear textual source
In the early US, states had the immigration power under __
10A
Theories for federal immigration powers
- War Clause (tenuous)
- Commerce Clause
- Migration/Importation Clause
- Naturalization Claus
The theory under the naturalization clause has been _-
rejected in at least one line of cases (doesn’t follow Congress can decide who to admit)
Case about plenary power
Chae Chan Ping
Chae Chan Ping facts
challenging 1888 version of Chinese Exclusion Act which voided his certificate one week prior to arrival
Chae Chan Ping holding
Congress has absolute right to exclude and no judicial remedy
Chae Chan Ping’s arguments against 1888 Act
- Violated China-US treaty
- Due process
- Congress lacked authority to pass it
CCP court held that Congress had plenary power because __
right to exclude inherent to sovereignty
CCP court views people moving in as ___
foreign aggression
CCP court says if American can’t exclude then
subject to another’s control
CCP doesn’t even require the judiciary to make ___
finding of danger/national security
CCP held that the ___ controls
latest express of sovereign will, (Acts over treaties)
The CCP totally ignores __
due process claim and Marbury duty to say what the law is
Under CCP, the ___ don’t apply to immigration law
normal constitutional issues
The CCP court could’ve said that Ping had ___
sufficient notice
Fong Yue Ting facts
lacked certificate of residence and couldn’t show through one credible white witness that they were lawful residents
Ting’s argument
Exclusion Act violates 14th equal protection clause
FYT held that the __
right to expel or deport as absolute as right to prohibit entrance
FYT says that deportation is __
not a punishment
FYT and CCP both __
justify under grounds of sovereignty
FYT says that Ting was not __
deprived of life, liberty or property without due process
One critique of FYT is that could still say Congress has authority but __
heightened due process right
Main points of FYT Brever dissent
- already here should get more protection
- it is punishment
- clear liberty interest
-slippery slope of sovereignty
Today, the law does recognize __
due process claims in deportation
What are some of the constitutional protections in crim law that don’t apply in deportation?
- ex post facto prohibition
- exclude evidence if improperly obtained
- double jeopardy
- jury
- right to counsel (govt expense)
- speedy trial
- reasonable bail
- cruel and unusual punishment
Plenary power is strongest when __
people outside the border seeking entry (Ekiu)
Ekiu facts
Japanese woman said meeting husband in US but deemed likely to become public charge
Ekiu held that due process does not require ___
judicial review of executive findings
Yamataya facts
initially admitted for a few days, hearing not in her language and no translator
Yamataya found that ____ BUT ___
PP not unfettered, hearing without translator was enough for due process
People outside the border seeking entry are requesting ___
a privilege and thus have no constitutional rights regarding the application
Knauff facts
physically present in US but not admitted. denied a hearing
Knauff holding
whatever Congress decides for procedure is due process
Mezei had same result as Knauff but __-
he was stateless
Mezei was eventually __
paroled in
Today courts often resolve immigration claims through ___ bringing into question __
admin deference and statutory interpretation
Ways to attack amendment to INA says no immigration visas extended to citizens of Tanzania (due to ISIS concerns)
- Discrim on basis of national origin for people already here in US
- overrule CCP
- challenge based on harm to Tanzanian Americans
Ways to support amendment to INA says no immigration visas extended to citizens of Tanzania (due to ISIS concerns)
Leg has PP whether in or outside US
How is amendment to INA different from travel ban?
Exec order but can argue PP also extends to Exec
