Congressional Authority over Immigration and Naturalization

[Earl Maltz]

Nguyen is complicated by the fact that the claim is that the statute 
unconstitutionally discriminates against the citizen parent on the basis of 
his sex, and in any event explicitly states that it does not have to reach 
the plenary power question.  Zadvydas ( a truly crazy decision, whether it 
is seen as based on constitutional principle or statutory interpretation) 
is a deportation case and explicitly distinguishes Mezei, which reaffirmed 
the plenary power doctrine with respect to entry issues.

At 01:02 PM 10/25/2005 -0500, you wrote:
>Well, I think Nguyen (and Zadvydas implicitly in the
>immigration area) explicitly suggests that this Court is not
>applying plenary powers doctrine since the Court applies
>intermediate scrutiny to the gender based distinction.  A
>majority defer to Congress' determination but does so
>finding a "real" difference to justify the sex differential.
>  Certainly there are justices on the Court, Justice Scalia
>is the one that comes to mind, that have made it clear that
>they think that in the exercise of the naturalization power
>Congress has plenary power, but it's not clear to me that
>the view garners a majority today and Nguyen would seem to
>indicate that it doesn't.
>
>----- Original Message Follows -----
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>To: medina at loyno.edu
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: Congressional Authority over Immigration and
>Naturalization
>Date: Tue, 25 Oct 2005 13:53:12 -0400
>
> > Certainly, many commentators have made such an argument,
> > but I'm not aware  of any case law that expressly
> > questions the Chinese Exclusion rule.  Am I  mistaken?
> >
> > At 12:39 PM 10/25/2005 -0500, you wrote:
> > >Actually, isn't there a strong argument available that an
> > >expressly racial or gender based distinction may in fact
> > not >be sustained today?  Assuming one had standing to
> > raise the >claim?
> > >
> > >Isabel Medina
> > >Loyola New Orleans
> > >
> > >----- Original Message Follows -----
> > >From: Earl Maltz <emaltz at camden.rutgers.edu>
> > >To: JMHACLJ at aol.com
> > >Cc: conlawprof at lists.ucla.edu
> > >Subject: Re: Congressional Authority over Immigration and
> > >Naturalization
> > >Date: Tue, 25 Oct 2005 13:26:41 -0400
> > >
> > > > The answer to all of these questions is "yes" under
> > > > the much-criticized  rule (that I happen to agree
> > > > with) enunciated in the Chinese Exclusion Cases.
> > > >
> > > > At 11:45 AM 10/25/2005 -0400, you wrote:
> > > > >What are the constitutional dimensions of the plenary
> > > > authority of  >Congress over immigration and
> > > > naturalization?  How does the Fourteenth  >Amendment
> > > > play into the definition of those dimensions? >
> > > > >Could Congress, assuming veto proof majorities or
> > > > approval by the  >President, pass a law imposing ANY
> > > > conditions whatever on naturalization? >
> > > > >For example, taking and passing a civics exam in the
> > > > English language? >
> > > > >Or, for example, could Congress limit naturalization
> > > > to (1) an age group,  >for example, persons aged 21 or
> > > > older, (2) a single gender (pretend we're  >Australia
> > > > and we have too many men and not enough women), (3) a
> > > > category  >of races or national origins that included
> > > > some and excluded others? >
> > > > >Jim Henderson
> > > > >Senior Counsel
> > > > >ACLJ
> > > > >_______________________________________________
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