Abstract
Immigration law has been described as a field of constitutional oddity. Under the plenary power doctrine, courts have deferred to government decisions on immigration policy that would plainly violate constitutional rights outside of the immigration context. Courts have wielded the plenary power doctrine as a tool of systemic racism, using it to uphold racially discriminatory immigration policies for over a hundred years of jurisprudence. The plenary power doctrine has allowed the U.S. government to create a racial hierarchy at its borders. Throughout U.S. history, however, courts have pushed against the plenary power by intermittently weighing individual rights. By using a plaintiff-focused approach, courts have from time-to-time turned to statutory interpretation to chip away at plenary power.
The major questions doctrine, a doctrine that has quickly developed into a powerful statutory interpretation principle, has been invoked by lower courts in the immigration context. For example, the major questions doctrine was used in litigation regarding DAPA and DACA policies. The seismic development of the major questions doctrine into a powerful statutory interpretation tool has put it on a collision course with the plenary power doctrine. This Comment traces the development of the major questions doctrine and the plenary power doctrine. It opines on how the major questions doctrine is a strong candidate to push against the plenary power doctrine in similar and different ways than the plaintiff-focused statutory interpretation methods of the past. Yet the Comment concludes that while the major questions doctrine may provide some noncitizens with relief from discriminatory immigration policies, it fails to address the systemic racism sanctioned by the plenary power doctrine throughout U.S. history.
