Fla. L. Rev. Forum

Michael Kagan
Shrinking the Post-Plenary Power Problem
Response to Matthew J. Lindsay, Disaggregating “Immigration Law”

Professor Matthew J. Lindsay’s excellent article Disaggregating “Immigration Law” arrives at a pivotal moment in the evolution of American immigration law. My understanding of this moment is thus: A majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. So long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. In my view, the importance of Professor Lindsay’s intervention is that it helps point a way to find clarity in this transitional period. Read more.