Throwback Thursday: Steve Legomsky

Immprof Legomsky then and now

Welcome to Throwback Thursday, where we profile previously-published scholarship that should be on every immprof’s radar. Today’s featured scholar is Steve Legomsky.

Two early writings by Professor Legomsky – a book and a companion article – together provided the first comprehensive study of the plenary power doctrine. The article was Immigration Law and the Principle of Plenary Power, 1984 Supreme Ct. Rev. 255. This article coined the term “plenary power doctrine.” The article gleaned from a century of Supreme Court decisions seven policy rationales on which the Court had relied at various times, argued that all those rationales were logically flawed, identified likely external forces that helped shape the plenary power doctrine, and described the procedural due process exception and other strategies the lower courts have adopted to chip away at the doctrine and circumvent its harsh effects.

The book, published three years later, was Immigration and the Judiciary – Law and Politics in Britain and America (Oxford Univ. Press 1987). Chapter 2 contained a section contrasting the U.S. courts’ deferential constitutional review of federal immigration statutes with their far more generous approaches to statutory interpretation, including construing statutes so as to avoid constitutional doubts. Chapter 3 then provided a case-by-case history of the plenary power doctrine, tracing its evolution from the early 19th century federalism cases to the present day. It argued that the plenary power doctrine evolved partly through misplaced reliance on decisions supporting more modest propositions. In particular, the book argued that the Court performed an illogical leap from principles concerned only with federalism to those that implicate individual rights and the powers of courts.

In the roughly 30 years following the publication of these two writings, a number of thoughtful scholars have elaborated on several of those themes and have furnished additional insights into the origins and possible future of the plenary power doctrine. As long as immigration law remains a constitutional outlier, this scholarly discourse is likely to remain a critical focus of the great immigration debate.

-KitJ