“When the government wants to do something, it has to give a reason,” former acting Solicitor General Walter Dellinger once said. “When it wants to do something bad, it has to give a really good reason.” I begin my introductory constitutional-law course every year with Dellinger’s rule. Governments must give reasons, because governments don’t have rights. They have powers—“just powers” derived, as the Declaration of Independence says, “from the consent of the governed,” and to be used, and honestly explained, for the good of the public.
That is what “limited government” means: Government must explain itself honestly, both to citizens and, if necessary, to courts. That principle is at the heart of the system of judicial review.
But there’s one place where courts seem to believe it doesn’t apply—that spooky constitutional Sargasso where immigration and national-security law flow together. For the past century and more, executive officials have told the federal courts that, in this context, the “political branches” can do, in essence, anything they want, without a lot of backtalk from judges; to a depressing extent, judges have deferred on command.
America may be a nation of immigrants, but under what’s called the “plenary power” doctrine, the government may close the door at any moment against any new immigrant or immigrant group—for any reason, or, perhaps, for no reason at all. In 1976, a unanimous Supreme Court majority wrote that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” That’s because, the Court has said, control over immigration is closely linked to matters of foreign relations, war, and defense—and in those area the courts have almost no role to play.