The following post has been updated and revised as of January 14, 2017:

This post will continue my comments concerning the landmark 1972 US Supreme Court Decision in Kleindienst v. Mandel, 408 U.S. 753, which dealt with the question whether the constitutional rights of American citizens, not just immigrants, can be infringed by denying a foreign citizen or citizens admission to the US solely because of their political or religious beliefs.

As I mentioned in my previous comment on this landmark case (see Immigration Daily, December 29, 2016), the issue of protecting the First Amendment free speech rights of American citizens, which the Court majority acknowledged might be infringed by denying a US visitor visa to a pro-communist non-US citizen writer because of his political views, appeared to be headed on a collision course with the "plenary power" doctrine.

As is widely known, this doctrine, which holds that no non-US citizen has a constitutional right to enter the US, had its origins in the time of the notorious late 19th century Chinese exclusion laws, and was, very arguably, developed in order to support this overtly racial goal.

The following is how Justice Blackmun, writing for the court majority in Mandel, attempted to resolve this apparent conflict between "plenary power" of the executive and legislative branches of the federal government to exclude Mr. Mandel, and the what Justice Blackmun called the "constitutional interests" of US citizen academics in "sustained, face-to-face debate, discussion and questioning" which Mandel's admission to the United States would have have made possible but which were prevented by the government's decision to deny him a visitor visa.

After citing the history of the plenary power doctrine, beginning with the 1889 Chinese Exclusion Case and the related, equally infamous (my term, not Justice Blackmun's) 1893 case of Fong Yue Ting v. U.S. (citations omitted), Justice Blackmun cited a number of more recent Supreme Court decisions reaffirming the plenary power doctrine.

Then, (metaphorically speaking), Justice Blackmun called in Justice Felix Frankfurter for assistance:

"Mr. Justice Frankfurter ably articulated this history [of the plenary power doctrine] in Galvan v. Press [citation omitted], 1954, a deportation case, and we can do no better. After suggesting [page number omitted] that 'much could be said for the view' that due process places some limits on congressional power in this area 'were we writing on a clean slate,' he continued:

'But the slate is not clean. As to the extent of the power of Congress under review, [over immigration] there is not merely "a page of history"...but a whole volume.' In the enforcement of these policies, the Executive branch of the government must respect the procedural safeguards of due process...But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government...'

Justice Blackmun continues to quote from Justice Frankfurter's opinion in the above 1954 deportation case as follows:

"'We are not prepared to deem ourselves wiser or more sensitive than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens...'"

With all due respect to Justice Frankfurter, who is universally recognized as one of the greatest legal minds who has ever sat on the United States Supreme Court, one has to ask which Justices he had in mind when he referred to "those who have been most zealous in protecting civil liberties under the Constitution".

Was he talking about the Supreme Court Justices who issued the infamous Chinese Exclusion Case and Fong Yue Ting decisions, with all their overt racism and assumptions that Chinese immigrants were by nature inferior to native born white Americans? It would seem so, because, as seen above, those are the very cases that Justice Frankfurter (quite accurately) cited as the basis of the doctrine of plenary power over immigration.

If this is what Justice Frankfurter had meant by writing on a slate that was far from "clean", one would certainly have to agree.

The drastic consequences of holding that the "plenary power" over immigration doctrine, which is found nowhere in the Constitution, but was entirely a judicial creation stemming from one of the darkest time in all of America's legal history, in effect trumps (no pun intended, of course) the Constitutional guarantees of due process which are fundamental to America's democracy were illustrated by Justice Frankfurter himself, discussing the facts in the Gavin deportation case referred to above (347 U.S. 522):

"The power of Congress over the admission of aliens and the right to remain is necessarily very broad...Nevertheless, considering what it means to deport an alien who has legally become part of the American community, and the extent to which, since he is a 'person', an alien has the same protection for his his life, liberty and property under the Due Process Clause as is afforded to a citizen, deportation without permitting the the alien to prove that he was unaware of the Communist Party's advocacy of violence strikes one with a sense of harsh incongruity. If due process bars Congress from enactments that shock the sense of fair play - which is the essence of due process - one is entitled to ask whether it is not beyond the power of Congress to deport an alien who was duped into joining the Communist Party, particularly when his conduct antedated the enactment of the legislation under which his conduct is sought."

(One has to ask what Justice Frankfurter would have said about IIRIRA's provision, enacted four decades after the Gavin decision, automatically revoking permanent resident status and mandating deportation for ex post facto conduct, namely commission of an "aggravated felony", which can involve actions far less serious than advocating the overthrow of the government by force and violence.)

Returning to Justice Blackmun's majority opinion in Mandel, one also has to ask whether putting the "plenary power" doctrine ahead of the Bill of Rights guarantees in the Constitution, especially (as in Mandel), where the Court also recognized that US citizens, not only "aliens", may have a "constitutional interest" in deciding whether a particular foreign citizen should be admitted to the United States, makes any sense.

Since, as shown above, the "plenary power" doctrine had its origins in attempting to exclude immigrants from the US solely because of their race, and, as is evident from both the Gavin and Mandel cases, it was later used as an instrument of suppression against unpopular political opinions, both of which are in clear violation of the spirit, if not the letter, of our Constitution, is there any justification for using this doctrine against immigrants, and by extension their US citizen co-religionists, who practice a faith which is now as unpopular with many of our political leaders and much of the US public as having Asian ancestry was in America a century or more ago, or certain left wing political views were fifty or more years ago?

For an answer to this question, we should look at the dissenting opinions in that case, which I will do below.

To be continued.

Roger Algase
Attorney at Law