Canons, the Plenary Power Doctrine and Immigration Law

There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction in an aggressive fashion to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role that canons have played in immigration law or have viewed canons as serving only a temporary and marginally legitimate role as substitutes for the lack of constitutional rights afforded aliens. In this Article, I defend canons and argue that they should be viewed as having a permanent and legitimate role in interpreting immigration provisions, even in cases where no constitutional issues are raised. I explain that part of the function of some canons is to require courts to sometimes adopt second-best interpretations of statutes. Contrary to the claims of some scholars, these interpretations do not add unpredictability to the law. While I defend the canons that courts have chosen to apply in immigration cases on normative grounds, the Court’s recent application of the canon of constitutional avoidance presents new concerns. The Court has recently transformed the canon, which requires courts to avoid serious constitutional issues through statutory interpretations, into a device that often gives aliens as a whole greater rights, at least temporarily, than would a decision that rested on constitutional grounds. The expansion of the canon of constitutional avoidance means that courts should be particularly careful when applying it in order to avoid unnecessarily disrupting Congress’s legislative designs