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578 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
A. Using Immigration Laws and Enforcement to
Subordinate “Others”
Congress’s broad authority in setting immigration policy allows
nativism, the casting of noncitizens as unaccepted “others,” to pervade
immigration laws. Similarly, the government’s choices in how and
where to enforce immigration laws primarily targets immigrants from
Latin and South America. The result is suspicion and mistrust on behalf
of Latinos toward the government and the Border Patrol specifically,
taking a toll on the Latino community and impeding law
enforcement.
1. Plenary Power over Immigration Law
U.S. immigration policies have long used the border to exclude
certain groups of individuals considered “dangerous, unwanted, [and]
undesirable.” 60 For example, the Alien and Sedition Acts of 1798
targeted people of French ethnicity and ideology; fear of Japanese and
Japanese Americans during World War II spurred the internment of
Japanese Americans; and, during the 1950s, fear of Communist enemies
resulted in frequent interrogation of immigrants from Southeastern
European countries. 61 Even though these policies have rested on
questionable rationales at best, the Supreme Court has accepted that
Congress has plenary power over immigration laws due to national
security concerns, sovereignty, and the political branches’ control over
foreign policy. 62 Accordingly, Congress has broad discretion to
choose to exclude certain noncitizens. 63 Currently, the legislative and
60. Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National
Imagination, 85 CAL. L. REV. 1395, 1411 (1997).
61. Juan F. Perea, Introduction to IMMIGRANTS OUT!: THE NEW NATIVISM AND THE
ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES 1, 1–2 (Juan F. Perea ed., New
York University Press 1997).
62. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581,
606 (1889) (establishing the plenary power doctrine). “To preserve its independence,
and give security against foreign aggression and encroachment, is the highest duty of
every nation, and to attain these ends nearly all other considerations are to be subordinated.”
Id.
63. Id. The Court has gradually chipped away at the plenary power doctrine, recognizing
that this power is “subject to important constitutional limitations.” Zadvydas v.
Davis, 533 U.S. 678, 695 (2001) (citing INS v. Chadha, 462 U.S. 919, 941–42 (1983);
The Chinese Exclusion Case, 130 U.S. at 604); see Mathews v. Diaz, 426 U.S. 67,
80–83 (1976) (reviewing Congress’s decision to limit Medicare to legal permanent
residents who have been in the United States for at least five years and finding that it
falls within Congress’s plenary power over immigration and was a reasonable policy);
Hiroshima Motomura, Immigration Law After a Century of Plenary Power: Phantom
Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 560 (1990)
(describing the evolution of the plenary power doctrine). However, the Court does