The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective

Scholarly Articles and Books

December 21, 2010

Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective, 15 Texas Law & Policy Review 61 (2010)

I. INTRODUCTION

For over a century, it has been repeatedly but unsuccessfully argued that the First Amendment of the Constitution limits the federal government’s plenary power to exclude or expel aliens from the United States.1 Such arguments have persisted despite the Supreme Court having repeatedly determined that the First Amendment does not restrict such power.2 Instead, the Court has upheld the federal government’s plenary power to “forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory” regardless of whether its justification is based upon ideological or association grounds.3

Numerous commentators, scholars, and attorneys have attacked this rationale by arguing that the Bill of Rights limits the federal government’s power to exclude or expel aliens.4 For instance, Karen Engle criticizes read more.

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