Panel: Should Judges Set Immigration Policy?

Related Publications: Backgrounder, Video





MONDAY, JUNE 8, 2009

Transcript by
Federal News Service
Washington, D.C.

MARK KRIKORIAN: (In progress) – Mark Krikorian. I’m executive director of the Center for Immigration Studies.

All the debates over amnesty or an immigration bill presuppose a basic deal. And this was the case in the ’80s and this was the case in the recent debates a couple of years ago and also in the one that will be upcoming. And that basic deal is this: that illegal immigrants will get legal status in exchange for tougher enforcement measures.

But what if that deal were not held up? And that happened last time for political reasons as a result of the 1986 amnesty deal, but there are enforcement measures now, or at least proposed, that would be part of such a deal.

For instance, a rule requiring use of the E-Verify system to screen out illegal immigrants by federal contractors, which was delayed recently, or possibly a mandatory use of this E-Verify system for all employers, or the use of no-match letters, which is the Social Security Administration alerting employers that they have employees whose names and numbers don’t match, or more cooperation between state and local police and the immigration authorities.

But the dirty little secret of the pro-legalization side is that they, I’m pretty sure, really know that these promises of enforcement measures actually won’t ever happen once the amnesty happens because judges will block them. And that’s really what makes the topic we’re going to talk about today so important.

When you say Plenary Power Doctrine to somebody – I mean, if their eyes don’t glaze over they figure it’s some arcane point of legal minutia, but in fact, as our panelists will explain, it’s the basis for all immigration policy-making.

And if you can’t – I mean, specifically in the context of this so-called comprehensive immigration reform, if there’s no guarantee of enforcement measures actually making it through court, then the whole concept of a deal is completely undermined.

So what’s what we’re going to talk about today, and our first panelist is going to be Jon Feere, a legal policy analyst at the Center for Immigration Studies and author of the paper that we have out there on the Plenary Power Doctrine, going over what it is, what’s the history of it, what are some of the challenges that have been mounted against it, and what might be some possible responses.

In commenting on both the paper and the whole idea, the whole issue of the Plenary Power Doctrine are two very well-qualified people. First, Professor Jan Ting, who teaches law at Temple University Law School, is a fellow with the center, and was associate commissioner?

JAN TING: Well, I was only acting associate –

MR. KRIKORIAN: Acting associate.

MR. TING: – but my title was assistant commissioner.

MR. KRIKORIAN: Assistant commissioner of what was then the Immigration and Naturalization Service in the first Bush administration.

And our second commenter is Peter Nunez. He’s chairman of the board of CIS but, more importantly, former U.S. attorney in San Diego and former assistant secretary of Treasury for Enforcement Matters.

So Jon will start, then Jan, then Pete, and then we’ll take questions if there are any. Jon?

JON FEERE: All right, thank you, Mark, and thank you to the other panelists for coming out to speak to my paper this morning.

The Plenary Power Doctrine is a doctrine that will become much more important in the coming years, not just as a result of the various amnesty proposals that are likely to come out of the White House, but I would say also in the context of how this White House or future administrations deal with the issue of the Guantanamo detainees. And we can get into those issues maybe a little bit later, maybe during question and answer.

But probably the most important thing we can do is begin with a basic definition. And the Plenary Power Doctrine is based on the notion that the political branches – the legislative, the executive – have absolute power over the regulation of immigration and have a right to regulate immigration with little to no intervention by the judiciary.

This is a doctrine that has existed for over a hundred years and really came to being in the late 1800s when immigration first became a relevant political issue. And we’ve seen this mind-set, this holding from the court that they will not involve themselves in immigration matters, because it is such a political issue, and that it wouldn’t be prudent for them to do so.

We’ve seen this upheld time and time again. But despite this fact, there is a movement by some in what I will call the anti-plenary power crowd, largely immigration attorneys and others, to erode this power in favor of a judicially administered immigration system.

These are groups that would like to see opportunities for appeal. They would like to see the power of the White House minimized and consequently the power of the people minimized in favor of the alien. They would like to see deportations minimized. But basically they can’t do this without chipping away at this Plenary Power Doctrine.

Now, theoretically, without this doctrine in effect, the ability of the political branches to decide who shall enter the country and who shall be removed and under what conditions could be abolished in favor of a court-run system. This will take power out of the hands of the electorate to decide who we are as a nation, who we shall be, and the conditions under which people may enter.

Well, the Constitution itself doesn’t give much direction on the issue of immigration other than to say that the power of naturalization itself is invested in Congress, one of the political branches. Most of our immigration law, therefore, is statutorily based. It’s been written by Congress over the years. The White House has had its own – put its own efforts in, in terms of executive orders and the like.

But as a result of this, probably the best way to explain the immigration issue and the Plenary Power Doctrine itself is to really hear how the court has explained their position on immigration.

During the late 1800s, like I mentioned, when the immigration issue became the relevant political issue of the day, in a series of holdings the court set out its position. The court explained that executive branch immigration officers are, quote, “the sole and executive judges of immigration cases.” The court held that no other tribunal, unless expressly authorized to do so, is at liberty to reexamine or controvert the sufficiency of the evidence on which he – the immigration officer – acted.

They also held that the power of Congress to expel, like the power to exclude aliens from the country, may be exercised entirely through executive officers. And we’re thinking here, of course, immigration officials, ICE officers and the like.

Now, as to the issue of due process, this is really kind of a key issue here. Everyone who understands the Constitution at the most basic level realizes that as a citizen, if you’re deprived of life or liberty or property, you are entitled to a certain amount of due process before the government takes that from you.

And the court has held that, as far as immigration goes, first the alien has a lower amount of process that is due than a citizen, but the court has also explained that as to aliens arriving at our shores, quote, “The decisions of executive or administrative officers acting within power expressly conferred by Congress are due process of law,” and that, “The order of deportation is not a punishment for a crime. Instead, it’s a method of enforcing the return to his own country of an alien who has not complied with the conditions upon which his continuing to reside here shall depend.”

In other words, the court is saying that has not been deprived of life, liberty or property without due process of law, and the provisions in the Constitution applying to securing the right of trial by jury or prohibiting unreasonable searches and seizures and cruel, unusual punishments have no application. That’s the Supreme Court’s own holding.

Now, these are only the foundation of the Plenary Power Doctrine. The sentiment has been reiterated time and time again over the past 100-plus years, and they’re having a few cracks here and there. Mostly we’ve seen efforts by the immigration attorney groups to sort of chip away at the doctrine, making little small exceptions and getting the lower courts largely to carve out exceptions here and there with the long-term goal of course being complete dissolution of the doctrine.

Now, as I noted, the court has explained – immigration is inherently political. The court has held that they themselves, as Supreme Court justices, don’t have the capacity or the expertise to handle immigration issues, and they would prefer that these be dealt with by those who are the experts in the immigration courts, which of course are separate from judicial courts, and immigration officials in the White House and Congress itself.

Just as an example, in 1952 there was a case where a number of aliens, non-citizens who were long-term residents, were members of the Communist Party; they were deemed a threat by the White House, and the aliens appealed it up to the Supreme Court. But just to give you an idea of the way the court looked at this from a political perspective, the court said, look, we’re not going to get involved. We’re not going to say, you can’t deport these individuals because, quote:

“Any policy towards aliens is vitally and intricately interwoven with the contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

“And,” the court continued, “Nothing in the structure of our government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with that of Congress.”

Now, Justice Frankfurter agreed with the majority in this case. He understood that there was a harshness involved in removing a non-citizen who was a long-term resident. But, again, touching on the political issue, he held that immigration is a political policy belonging to the political branch of the government, wholly outside the concern and the competence of the judiciary.

And recognizing this power and this responsibility of Congress, one does not, in the remotest degree, align oneself with fears unworthy of the American spirit, or with hostility to the bracing air of the free spirit. One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this court.

And that’s really what we’re talking about here today. If these organizations, or anyone, has a problem with our immigration policy, it’s important that you petition Congress, the people who are politically accountable, the White House, to change the policy. And as I see it, a lot of these groups – like Dave Selia (ph), for example, is involved in a case in Pennsylvania right now – they realize that what they want on immigration law politically probably is impossible.

So instead of going towards Congress and trying to make the case, they’re hoping that they can kind of quietly advance their agenda by getting one judge to, in the Pennsylvania case, for example, add a six-month removal period to a deportation statute, which isn’t in law.

Now, this chipping away at the doctrine really came to a head two months prior to the 9/11 attacks in a case known as Zadvydas versus INS. It involved two aliens, criminal aliens, one of whom was involved in violating various drug crimes, robbery, burglary, theft; another alien who was involved in a gang-related shooting. He had been convicted of manslaughter – basically not the type of people you want in your neighborhood.

Well, the White House was doing everything it could to find a place to remove these individuals within the 90-day removal period, which was a statutorily defined 90-day period in which the government is going to try and remove these individuals back to their home country.

Well, no other country wanted to take them in. Their own countries didn’t want them. Obviously we didn’t want them here and they didn’t want them back either. And this took some time for the White House to try and negotiate – we got to about a six-month period plus where the White House was still trying to find a place to deport these individuals. They were detained during that period.

Well, what we really saw in the very close 5-4 decision was sort of what the anti-plenary crowd wants to see. This is one of the cases they highlight. The Supreme Court decided to arbitrarily write into law the idea that if the White House can’t find the place to remove a criminal alien after a six-month period, and there’s no significant likelihood of removal in the reasonably foreseeable future, that the aliens had to be released, which is a shocking outcome of a court hearing.

It’s inherently a political decision. It has nothing to do with statutory law. In fact, the White House was arguing that – the government was arguing that if you look at the statute itself, the statute says that an alien can, quote, “be detained beyond the removal period,” end quote, if the alien is considered a risk to the community, but the court dismissed this and said, you know, we think six months is enough. All this history about the court not being political agile or knowledgeable on this issue seemed to have been dismissed.

Well, I quoted at length that case as well as the dissent, and I encourage you to read it because it’s one of the most scathing dissents I’ve seen out of the Supreme Court in quite some time. And the dissent explained that, look, you guys have destroyed the idea of accountability. If the White House or Congress writes a policy and there is a negative outcome of it, who are you going to hold accountable?

Well, you’re going to hold the White House accountable. Maybe the electorate will vote the person out of office, or maybe the White House will fire those who were involved in this decision. Or maybe you will get Congress to change the law.

But when the Supreme Court does this, where is accountability? The White House can shrug its shoulders and say, look, we’re just following court orders. Congress can do the same thing. And it sort of takes the power out of the electorate’s hands as to how we regulate immigration.

And another thing that came out of this holding is the idea of foreign powers controlling our immigration system. It shows you how bizarre the outcome can be when the Plenary Power Doctrine is easily dismissed, because here we have a case where the foreign government can say, look, eh, we’ll wait it out six months. We don’t want this guy coming back. And after six months the guy’s released and, as the dissent said, basically a foreign government is now in power to impose dangerous aliens upon us.

And that’s an extreme example, but one that is relevant if we don’t keep a close eye on this, and if Congress and the White House don’t keep a close eye on this because it’s their power that’s being usurped.

Well, as soon as that case came out and as soon as 9/11 occurred a couple of months later, we did see a reaction to it out of the political branches. We saw the REAL ID Act. We saw the Patriot Act. People don’t realize those included provisions that were in part designed to rebuke this holding.

Additionally, the White House narrowly interpreted this holding and carved out a bunch of exceptions itself as to what type of aliens really should and should not be removed. If it’s a person that has a communicable disease or a terrorist or the like, the White House isn’t going to release them.

But it shows that if the political branches don’t pay close attention to these immigration holdings in which the court dismisses the Plenary Power Doctrine, that power can really be, like I said, usurped from the political branches and from the people at large.

We can go into other issues during question and answer, but I think that’s the basis that is important to understand.

MR. KRIKORIAN: Thank you, Jon. Jan?

MR. TING: Well, thanks. It’s great to be here. I admire the paper that Jon has written, and it’s an honor to be at a Center for Immigration Studies event. I think the Center for Immigration Studies is a great national resource and they – I assume the people here are familiar with it, but they’ve got a great Web site, which is up on the poster in back, which I think is also a terrific national resource.

I thought I’d just offer three points in commenting on Jon’s paper, and the first is to reinforce the point that Jon has just made, to distinguish the power over immigration policy from immigration policy itself. Who makes policy is a completely different question and independent of whether the policy itself is good or bad.

And I was telling Jon – you know, I was looking through his paper to see if he got all the good stuff that people have said about plenary powers, and I think he did pretty much. But, again, our friend Justice Frankfurter, concurring in the Harisiades case, made this distinction clear when he said, “Whether immigration laws have been crude or cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress.”

The underlying policies of what classes of aliens should be allowed to enter and what classes of aliens shall be allowed to stay are for Congress exclusively to determine, even though such determination may be deemed to offend American traditions and may, as has been the case, jeopardize peace.

That’s a different question, whether the policies are good or bad, and the question of who should be making the policies. And as Jon’s paper makes clear, the whole notion of immigration law is premised on the idea that the political branches of government make the policy and enforce the policy.

The second point I want to make is that I think Jon’s paper is particularly timely because the nomination of Judge Sonia Sotomayor to the Supreme Court puts the role of the judiciary in the spotlight. And I think it would be very useful in the confirmation hearings if some member of the Senate were to ask the judge what percentage of the Second Circuit on which she serves’ caseload consists of immigration cases.

Anyone have a guess as to what that might be? What percentage of the caseload in Judge Sotomayor’s court is immigration cases? Well, I don’t know what she would say. She would probably have access to more recent information, but according to her colleague, Judge Robert Katzmann, who spoke in August of 2008, 39 percent of the caseload in the Second Circuit consists of immigration cases.

And that means Judge Sotomayor and her colleagues are intimately familiar with immigration law and immigration cases. They deal with this stuff every day. And so she has had an opportunity to consider the role of judges in such cases.

What is the role of judges in such cases? Is it to interpret the law or is it to create new law? I’d rather hear her views on that subject and particularly the concern over plenary powers raised by Jon in his paper than endless interpretations of a phrase taken out of context from her eight-year-old speeches. I think there’s more important stuff to talk about. So I compliment Jon on writing a very timely paper dealing with the role of judges in immigration cases.

And the last point I want to make is that the – and it relates to what Mark said earlier – that the context for a plenary powers discussion necessarily assumes that we’re going to have a system of limited immigration enforced by law with someone making the rules, right? Only if we make that assumption do we reach the question of who should make the rules.

But in today’s political context, it’s not clear everyone buys into that notion that we’re going to have a system of limited immigration with laws that are enforced so that we can then argue about, well, who should make those rules and what should those rules be?

I mean, the underlying assumption is under attack right now. As everyone here knows, there is an alternate view out there. And – well, there’s actually several alternate views out there, but one of the alternate views is we shouldn’t have immigration laws. We should have open borders and everyone in the world who wants to come here can come here.

And, frankly, I respect the open advocates of that position, which includes some of our friends on the Wall Street Journal editorial board, includes some of our friends at the Cato Institute here in town. And that is an alternate view, and if we’re going to have open borders we don’t need to argue about who is going to make the rules because there aren’t going to be any rules.

But there is a second alternate view out there, which is, no, we’re not for open borders; heaven forbid, because I think everyone realizes that doesn’t have much popular support, and indeed, the proponents of a second alternative view say, oh, in fact, we want rules on the books. We want to keep these rules on the books, and we’re all for enforcement.

And in fact, you know, one of the arguments in favor of open borders is, well, we’d save billions of dollars on immigration enforcement that we’re now spending on immigration enforcement. We could save those billions of dollars and use it for other things.

Well, maybe that’s true, but the third position is, oh, we’re for enforcement. We want to spend those billions of dollars. In fact, to show our commitment, we’re willing to spend even more taxpayer dollars, right? Well, you know, we’ll raise you another billion, and we want to invest in things like high-tech virtual fences, right? It’s almost like having a real fence if we put up a high-tech virtual fence.

And we want to hire more people, right? We want to put more people on the payroll and pay them salary and benefits and, you know, vacation time and all this kind of stuff, but we’re going to tell them, no enforcement, right? You’re on the payroll but we don’t really want you to enforce the law. No more raids, all right? No more raids because that disrupts people’s lives, right, and disrupts families. So we don’t want to have anymore raids. And for all the people that choose to violate the laws, well, we’ll let them all stay. We’ll let them all stay anyway.

And to me that’s sort of a backhanded way, and a much more sophisticated way, of arguing for open borders than our friends at Cato and Wall Street Journal, who openly advocate it. I mean, there’s this other view that says, no, we’re not going to openly advocate it – that would be political suicide – but we’re going to keep spending the money but we’re going to have it come through a different way.

So again, it’s important that we clarify the plenary powers dispute is premised on the notion we’re going to have a system of limited immigration and someone is going to make rules about who can come in and who can’t and who can stay and who can’t, and then we can talk about who makes the rules.

The discussion also assumes that the political branches, the Congress and the executive, actually want to retain plenary powers over immigration. Again, it’s not entirely clear that they do. You know, from the point of view of Congress, it might be a good thing to let this hot potato be resolved by the judges rather than a member of Congress who – as a member once told me that there is a popular notion out there that people run for Congress so that they can vote on the tough issues of the day and have input on the tough issues of the day.

And this former member suggested that’s actually not the case, that people don’t really want to vote on the tough issues of the day. They’d much rather vote on non-controversial stuff like naming post offices and Future Farmers of America Week and things like that rather than the tough issues which are going to force them to make a decision and alienate some of their constituents.

And, you know, just to wrap up I’d note that Jon, near the end of his paper, says if the political branches want to reassert their authority in the regulation of immigration, they will have to take the initiative by drafting focused legislation and vigorously enforcing existing immigration laws. That’s a big if, all right? If they want to do that, that’s what they’ve got to do.

And at the end Jon says, “Congress must make sure that immigration laws are clear and decisive as to the issue of authority, and the executive branch must vigorously defend its regulation and enforcement of those laws. Such sentiment must be regularly expressed by the political leadership within the first two branches of government in order to put a halt to judicial branch encroachment over immigration policy.”

Again, it’s not entirely clear to me that the political branches want to halt judicial encroachment over immigration policy. So those are important contextual issues that lie behind what Jon is presenting to us.

MR. KRIKORIAN: Thank you, Jan. Pete?

PETER NUNEZ: Thank you, Mark. Ladies and gentlemen, good morning. I’m going to come at this from the perspective of my background as a recovering lawyer.

I went to law school in the late ’60s, graduated in 1970 when the Supreme Court and the judiciary was in a state of expansion of its own view of its role in society – it had been going on I think for 15 or so years before that – and from the almost 20 years I spent in law enforcement, if you will, mostly in San Diego on the border, where we dealt with immigration problems by the thousands every day, and the things that attracted me, I suppose, to this issue at this point in my life, or that have kept me involved in it at this point in my life.

One of the doctrines, or one of the concepts that I enjoyed the most learning in law school is at least in part reflected on page five of Jon’s paper, the end of the quote from the Harisiades case. Is that how you pronounce it, Jan? “Judicially we must tolerate what personally we may regard as a legislative mistake.”

There was a feeling, I think for 150 years plus in the judiciary that the role of the court was somehow limited. I’m not sure that that view prevails anymore in America. And I’ll get back to that sort of at the end of my remarks.

Why did it take until the late 1800s for I think probably the first mention of the plenary power, at least with regard to immigration, to be mentioned by the Supreme Court? I mean, that’s almost a hundred years after the Constitution, the current Constitution was put in place.

Well, it wasn’t until 1882 that there were any immigration laws that restricted people from coming in. So up until that point in time there was no such thing as admitting somebody or excluding somebody or deporting somebody.

It was only after 1882 when we began, with some restrictions, and also the Chinese Exclusion Act cases – the Chinese Exclusion Act was passed, that brought this issue to the court for the first time. But once it was pronounced in those cases, it was pretty faithfully adhered to for the next 70 or 80 years and now we have seen, as Jon has pointed out, some erosion of that concept.

What are the two primary potential sources of this erosion? Well, one is the courts themselves. Our Constitution pretty much guarantees that anybody who is held in detention can file a writ of habeas corpus.

So even if there isn’t some statute on the books that allows somebody to file a cause of action, anybody that’s being detained can file a writ of habeas corpus, and that’s the vehicle by which most of these cases end up getting before the court. And so the courts have his opportunity to decide again whether they still believe in the Plenary Power Doctrine or whether they want to adhere to it.

Jan touched on the second way that this can be eroded and that’s the political branches themselves give this away. I mean, there’s nothing that prevents – in the court cases, even the plenary power cases themselves say that the courts will stay out of this unless Congress says they can play a role.

So it is certainly possible, especially in the current environment, as Jan has suggested, to imagine either the president or the Congress deciding we’re going to let the courts get involved in this. We’re going to pass some legislation which specifically provides a role for Congress to basically erode the Plenary Power Doctrine.

I guess what frightens me the most – it’s easy to see how a Congress which is, for the last number of years, dedicated to ever-increasing levels of legal immigration since 1965; who has seen legal immigration grow to historically high levels; a Congress that’s tolerant of absurd levels of illegal immigration – it’s been going on, again, since the late ’60s –

Which is also bent, apparently, on granting amnesty, even if they don’t want to use that word, to up to 12 million people, as many as 12 million people; who are apparently willing to provide those 12 million amnestied aliens with the full and complete power to sponsor a family immigration – family based immigration, as we saw in the 1986 amnesty provisions, which could result in another, depending on whose estimates you use, 60 (million) to 100 million people coming in as a result of granting amnesty to the 12 million that are here now.

If the Congress believes that all those things are reasonable, why would they not gladly and willingly give the courts the authority that many judges would love to have, that they crave to review each and every immigration-related decision, essentially ending the Plenary Power Doctrine?

From the judicial perspective, activist judges – and I think Jan, again, alluded to it – I mean, activist judge, this debate has gone on every time there has been a Supreme Court vacancy. Now we’re going back at least to the ’80s, maybe even before that.

Activist judges see no limit on their authority and their wisdom. The judiciary has involved itself in every facet of life and legal jurisprudence in America. It’s difficult to believe, actually, given their intrusion into everything else they’ve intruded into, that the Plenary Power Doctrine has continued to survive even to this point in time.

Given the history of the Supreme Court activist jurisprudence over the past 50 years, it’s a miracle that we have the doctrine at all at this point. The Supreme Court has expanded its role in American life, extended its reach into every nook and cranny of life in America, has invented doctrines as necessary to reach the results it sees as best for America, to the exclusion of the judgments of the two political branches of government.

Why would we expect immigration to be immune from that kind of interventionist philosophy which dominates American jurisprudence, at least in the last half of the 20th century, and so far in the 21st century?

The Zadvydas case, which – I think that’s how you pronounce it, Zadvydas case which Jon mentions was the case that eroded the Plenary Power Doctrine, was the detention case, the case involving the detention of an illegal alien. So at least I guess we could say that there is now a detention exception to the Plenary Power Doctrine.

Detention cases are probably the most likely to result in judicial action and result in further erosion of the Plenary Power Doctrine. Courts don’t like the idea of the government detaining people indefinitely, regardless of why they say they’re doing it.

We’ve seen that quite ominously, I suppose, over the last five years relating to the Guantanamo cases. But other aspects of the immigration process could also incur the court’s wrath: deportation and removal, exclusion cases, and admissions and basis eligibility criteria.

Jan gave a talk to the board of CIS four or five years ago – I don’t remember exactly when – and talked about the Plenary Power Doctrine, and it caused me to, I suppose, understand that – well, maybe I should have understood before, but it brought home to me that if Congress decided to pass an immigration law that says the only people we’re going to admit are red-headed, left-handed Norwegians, that would be perfectly proper – maybe not wise but certainly within the purview of the court and the Plenary Power Doctrine, and nobody could do anything about it.

In other words, Congress has – at least if the doctrine still exists – complete authority to decide who comes and who doesn’t come. And the corollary to deciding who comes and who doesn’t come is what do you do with those who come who shouldn’t have come? So you get into the exclusion deportation removal aspects of the case. It’s all part of a system.

I spent most of my legal career in California, as I’ve said, which is part of the 9th Circuit Court of Appeals, which we call it, probably the most reversed federal circuit in the country for a generation now. I can just imagine the judges of the Ninth Circuit waiting – panting to get their hands on these cases so that they can substitute their judgment for the judgment of the executive branch officials charged with implementing, executing the laws that Congress has on the books.

There is no question in my mind that if they had the opportunity to do that, they would leap at the chance. And Jan’s comment about the number of cases in the Second Circuit that are immigration related I’m sure would be just as high, if not higher, in the Ninth Circuit, given the state of California and Arizona, which are part of the circuit.

What we’ve seen also in California over the years is the ability of lawyers to what I guess we could call forum shop. They want to bring a case to attack a certain principle that they disagree with, whether it’s immigration or something else. You’re not going to file that case probably in Montana or Arizona, but you probably would think San Francisco would be the first choice, or maybe Los Angeles.

And so we’ve seen lawyers chose to start the litigation in places like Los Angeles and San Francisco because they are the most liberal, the most activist courts in the Ninth Circuit, which is the most activist circuit in the country.

So it almost doesn’t matter what somebody in Des Moines, Iowa or Indianapolis, Indiana or, you know, Atlanta, Georgia, what the judges there think. It just takes one judge somewhere to start the ball rolling and the next thing you know this cascades through the Court of Appeals back to the Supreme Court, and 5 to 4 someone decides whether they want this Plenary Power Doctrine to continue or to end it or to modify it.

The circuits – the Ninth Circuit decides – all of the individual circuit courts decide thousands of cases each year. The Supreme Court takes probably less than a hundred cases for review. So I’m absolutely convinced that the judges of a court like the Ninth Circuit realize, we can do whatever we want in any case, and in 3,900 cases, our view will be upheld and in a hundred – maybe a hundred of those cases would be affected by a Supreme Court review. Actually it’s not a hundred from that circuit; it’s probably 10 or 15 or 20 cases would end up.

So this has created an aura of invincibility almost among activist judges, and only if you have a strong majority on the Supreme Court willing to say no – which is, again, almost every important case gets decided 5-4 one way or the other – it doesn’t give you great confidence that the Plenary Power Doctrine, or that the shepherding of our immigration law is in good hands, even now when left to the judiciary to deal with.

I’ll finish up with where I think Jan finished up. Appointing judges matters. Who are the judges that get appointed to all of these courts is important, especially the Supreme Court. And I echo Jan’s comment that I would love to see Sonia Sotomayor asked a few questions about her position on the Plenary Power Doctrine, which I think is a much better – actually more important, or at least – I won’t say that.

I’ll say it’s an important issue that would reflect her general attitude, I guess, toward the judiciary and the role of the judiciary other than some of the other contexts in which judicial activism is usually debated.

The immigration issue has been front and center on the American agenda now for several decades. It’s been ignored, shoved to the side, kicked around by the two political branches, which is not good, but at some point there will have to be some political resolution of this debate and how the courts view all of that is absolutely critical.

So I wish I could be optimistic that the fate of the Plenary Power Doctrine is safe, but I don’t think it is. I think it’s in trouble, and I don’t see any signs trending in our direction. Thank you.

MR. KRIKORIAN: Thank you, Pete.

Jon, did you have anything you wanted to comment on, and then we can take some questions?

MR. FEERE: Yeah, let me just tie up one of these things we mentioned before. And, Mark, you started with this, the issue of the amnesty proposal, we may say, and Jan and Pete both touched on it.

But this issue of a comprehensive reform, we know that there is an appetite from this administration and the prior administration for a mass legalization program. They’re not so hot on the idea of a mass enforcement program, which would simultaneously come along with this comprehensive approach.

So again, just to reiterate here, if this – if a comprehensive bill were to pass and it were to go before the Supreme Court, at least the enforcement mechanism of it, and if the court were to strike down some of this – these enforcement mechanisms, at that point a White House that’s supportive of the Plenary Power Doctrine would step in and say, look, we are the ones who are going to regulate immigration. This is something the Congress has written. We have signed it at the White House here. We’re going to follow it. This is not your area, Supreme Court.

But, again, as the panelists have touched on, if this White House doesn’t defend this, they can actually use the weakening of the Plenary Power Doctrine as an excuse to get away from this hot potato of enforcement. I mean, it’s such a basic concept here, but it’s important to understand that when this issue comes full circle, if it does, in coming years.

MR. KRIKORIAN: Okay, thanks. Does anybody have any questions for any of the panelists? Yes.

Q: Has anybody talked to Jeff Sessions, because he would be a playmate. (Chuckles.)

MR. FEERE: Not yet.

MR. KRIKORIAN: No, not yet.

MR. NUNEZ: Not yet, but –

Q: Are you making an appointment with him?

MR. NUNEZ: Well, I certainly need his e-mail address.

He has been very good on the past on these issues in general, and I know both in terms of his view of the judicial activism and his view of immigration enforcement are both very good. Hopefully he’ll put that together in this context.

MR. KRIKORIAN: And this is the kind of substantive issue that he’s said he wants to actually talk about instead of a lot of the extraneous stuff that’s been in the media. So I expect this is the kind of thing that may well come up during hearings.

Anyone else? Yes, sir.

Q: It seems to me that one of the ways that courts erode the possibility of enforcing immigration laws is by extending the right to counsel that aliens get so that when you have millions of people coming here, if every one of those that are being deported doesn’t have the right to counsel – if there aren’t enough lawyers to provide them with counsel, it ends up being impossible that – the works are so gummed up that you can’t even enforce the laws.

I read one of Sotomayor’s cases on immigration cases. It was an earlier case when she was a district judge, a federal district judge, and the situation was that the person was being deported for illegal reentry. That particular – that was the particular situation. So that’s a felony, I understand. That’s a criminal charge.

However, she was reviewing the prior proceedings, and previously this alien had been incarcerated for multiple drug misdemeanors and then was handed over to the INS. This was like ’94 or so – handed over to the INS. And there was an administrative law judge, an ILJ, immigration law judge, who said, look, I just – he managed to – the judge managed to get the person to waive the right of counsel and get deported.

So the person had been released from prison for the drug offenses and was then deported, and then illegally reentered. But what Sotomayor was saying – she got very concerned that when this person had been released from prison and then was deported as an illegal alien criminal, that he didn’t get a right to counsel at that time.

And that made me question a thing – I looked at the Sixth Amendment, right to counsel – Gideon versus Wainwright is the Supreme Court decision – and it said – the Sixth Amendment says in criminal cases the accused shall have the right to counsel.

Now, here we have a person who is not a citizen, who was convicted of drug misdemeanors, and is being deported, and does that person have the right to counsel? And what concerned me was that she was very solicitous that this person should have the right to counsel. That seemed to me to be an extension of who should get the right to counsel. And I’m looking for your reactions.

MR. TING: Well, this is a hot area that you’ve touched on of interest at the moment. It’s been well established for a century that enforcement of immigration laws is enforcement of civil law, not criminal law. Sending an alien to their home country is not a punishment; it’s simply an administrative determination of where this person properly belongs under our law.

And so that’s been pretty well established for a long time, notwithstanding Gideon, which stands for the notion that people charged with crimes for which their liberty is at stake, if they can’t afford a lawyer are entitled to a lawyer paid for by the taxpayers. It’s been well established that that doctrine does not apply in immigration cases.

And I must say I’m a little torn about this because, as a law professor who, I always say, produces what the country needs most, more lawyers – (laughter) – I’m always worried about employment of lawyers. And from the profession’s point of view, extending Gideon to immigration aliens would be a lawyers’ full employment act and it would suck up all the unemployed lawyers in the country and it would solve the problem for lawyers’ employment for decades.

So I mean, that’s a plus, but aside from that it’s a minus. We would have to pay for these lawyers, obviously, and that would be a big expense. The issue has arisen recently because the advocacy attorneys have been taking the position that, well, they want to challenge immigration determinations because of incompetent counsel.

So they want to attack an immigration decision on the basis that the counsel that this person had was incompetent and therefore they should get another bite at the apple. And so then the issue is framed as, well, if you don’t have a right to counsel, how do you have a right to competent counsel?

And the view was out there for a while that, well, if you have no right to counsel, and immigration people do not have a right to counsel, then they shouldn’t have a right to competent counsel. I mean, if you choose to retain counsel that turns out not to be good counsel, you know, it ought to be in the discretion of the government whether to allow a reopening or not. It ought not be a judge’s determination as to whether to reopen the case or not. That was the view of the government.

But Attorney General Eric Holder, as some of you may know, has just reversed that determination, and he has bought into the notion that, well, even though they don’t have a right to counsel, they have a right to competent counsel. And so that, you know, it represents a big victory for the advocacy lawyers out there to attack immigration determinations after the fact.

And so this is a very hot area of litigation that you’ve touched on. I mean, it’s always seemed clear to me, but evidently it’s not clear to a lot of other people out there.

MR. NUNEZ: Let me add on a little bit to this. I think the law allows the person to have a lawyer if they can afford one. It just doesn’t require that the government pay for one, for a lawyer for a defendant or for an alien who cannot afford their own.

You talked about the reentry after deportation. It’s a classic example of how courts try to expand – you know, given the opportunity, will expand their authority vis-à-vis everybody else. The law basically says whoever reenters who was found in the United States after having previously been deported is guilty of a felony.

The crime is pretty easy to prove. We’ve prosecuted thousands of these cases in San Diego in the old days. You introduce the certified copy of the deportation order and the record showing that the person was actually physically removed from the country. You prove that this is the same guy, and you prove that he was found – that he’s here, period, end of the case.

So the defense attorneys back in the ’70s and ’80s began to try to come up with some ingenious way to deal with this, would try to collaterally attack the underlying deportation order by saying, okay, fine, he did reenter and he is here but the initial deportation was faulty for some reason, which meant that you had to go through, in a jury trial perhaps and prove that whatever due process meant in that context had been complied with at the original deportation, which just made these cases a nightmare.

Now, the courts went back and forth, but they were prone to accept this argument that it was okay to collaterally attack the original deportation in the context of the criminal case.

Another analogy – and I use this analogy with some caution here. I don’t want to equate illegal entry with death penalty cases, but the availability of lawyers is a critical issue here. In California it takes 20 years once somebody is sentenced to the death penalty to be executed. The system of going through the whole courts is screwed up at every step of the way.

But one of the ways, one of the things that delays death penalty cases in California is that there’s no lawyers who will want to take the case. So the defendant sits in jail for five, 10, 15, 20 years waiting for some lawyer to be available, willing to take the case.

And the legislature and the court system, which don’t like the death penalty in spite of the fact that the people of California have reinstated it time after time after time. I mean, whether you agree with it or not, I mean, that’s the law. They’re perfectly content to let there be a lack of lawyers because it just means that no one will ever get executed. So you could see how if we extend this right to a lawyer to potential deportees, I mean, forget about it.

MR. KRIKORIAN: Anyone else? Yes.

Q: Jon, as you mentioned earlier, how does this relate to Guantanamo Bay – (inaudible)?

MR. FEERE: Yeah, we all touched on that. It was explained briefly. My thought on this is that we really will see this White House or the next White House and their opinion of the doctrine itself, when it comes to the issue of how we handle the release of these detainees, because at the end of the day we’re talking about a non-citizen who, as the court will probably hold, has no colorable right of entry.

They haven’t applied for a visa. They haven’t undergone a background check. They really have no right of entry anymore than anybody else outside the country right now. And I suspect – we don’t really know how this is going to unfold, but if there is a trial for each and every one of these individuals within our courts here in the U.S., and if some of them are found guilty of terroristic threats or what have you and they’re given a sentence, at the end of that sentence, what’s gong to happen? Or someone is found not guilty; what happens at that point?

And I think there are some in the anti-Guantanamo crowd who think that at that point the individual will simply be released into the homeland. I don’t see that happening, and it’s not going to happen, in my opinion, because the White House is going to assert its plenary power over immigration, which is basically what we’re talking about here, and say, look, these guys are going to be detained under our authority, perhaps indefinitely, once again.

So we’ll be back to square one, which I think is a fascinating way of looking at this, or, as Mark had noted, and Jan especially noted, if this White House and the next White House don’t actually want to maintain their control over this, they may watch these individuals, who may or may not be dangerous threats to our homeland, released into the country and simply say, hey, we didn’t decide this. Congress didn’t decide it. It wasn’t us. Don’t look at us. It was the Supreme Court. And then where is the accountability? Who can you petition?

MR. TING: I think Guantanamo is a fascinating legal conundrum. It’s useful to recall that Guantanamo, as a detention center, was first established in an immigration context during the great Haitian and Cuban outflows in the 1990s when there was an interdiction program which was just overwhelmed by the sheer numbers, and in desperation the U.S. government opened Guantanamo as a detention center for immigration detainees.

And it was done in part to preclude their making claims for immigration status based on being on American soil. And that was part of the thinking that I think probably occurred after 9/11 as to the logic of Guantanamo as a detention center for terrorist suspects.

I think it’s fascinating that in the debate over Guantanamo, which we’ve all read about, the concern has been like public safety. You know, are we safe to have these people incarcerated in super-max prisons? And there has been very little attention really paid to the immigration consequences of bringing these people on to American soil and what the consequences of that are going to be.

And, you know, John has suggested some of them. And, you know, when we talk about cases like Zadvydas where the courts order the release of people that the government doesn’t want to release, we can see what the potential is.

When this pirate was brought from Somalia to the United States, and I saw him being brought in, I thought, you know, this guy could end up as one of our neighbors because he’s a young guy – he’s a teenager. He’s not going to get a death sentence. He’s not going to probably serve the rest of his life in prison. At some point he’s going to come out of prison, and then what? Then what’s going to happen to him?

We may not be able to deport him because there might not be a functioning government in Somalia. Zadvydas, right? Release him after six months. Or he may be able to make an asylum claim because he’s on American soil, and even though there’s a functioning government there, he doesn’t want to go back there. He would rather live in New York City or Bethesda or someplace.

So I mean, that’s true of all these Guantanamo detainees who, once brought to the United States, it’s difficult to foresee what’s going to happen to them down the road. They could end up as our neighbors.

MR. KRIKORIAN: This is why I think this is just a side thing. This is a – I’m willing to put my name on the record on this: Guantanamo is not going to be closed. They’ll repaint it, they’ll put a new sign up and that will be enough.

MS. : (Off mike.)

MR. KRIKORIAN: Any other questions? We can take one more. We have time for one more. No? Okay, any closing thoughts from anybody? Okay, good. Well, thank you very much. Thanks for coming. This report and all our other work is online at And hope to see you at our next event. Thank you.