Debbie Nathan in the Boston Review:
What happened to former Columbia University student and Palestine rights activist Mahmoud Khalil has rightly alarmed many indignant Americans. Some have sought reassurance in the idea that since his abduction is nakedly unconstitutional, the institutions of American democracy—the Constitution, rule of law, brakes on the unchecked use of power—will swoop in to put an end to the madness. After all, we have the vaunted First Amendment. Attorneys from the ACLU and Center for Constitutional Rights are representing Khalil; surely their free speech arguments will impel his freedom and cancel his deportation. His detention surely is just one more instance of Trumpian insanity. Surely it will prove legally frivolous.
But it’s too soon to be sure, thanks to over a century of federal law that has hogtied the judiciary—and most dramatically, the Supreme Court—when it comes to judges’ ability to rule on the constitutionality of immigration rules. Yes, the First Amendment offers speech protections. But we also have a lesser-known idea that has influenced congressional and executive branch–mandated immigration law for well over a century: the plenary power doctrine. According to the doctrine’s principles, judges should avoid ruling on whether or not immigration laws are constitutional, even when it appears they are not.
More here.
Enjoying the content on 3QD? Help keep us going by donating now.