Accueil RED&S


Charles Gomes



Télécharger ce document au format RTF

Before The Chinese Exclusion case, immigration to the United States occurred basically without restriction. It was only in the late nineteenth century that Congress decided to limit immigration from some countries. The Chinese exclusion decision can be considered as the symbol of this political change. In this case, a person of Chinese origin had lived in the US legally for twelve years. He left the country with documents allowing his return. When he came back to US border, the authorities denied him entry because of the new act of the Congress that exclude all Chinese to enter the territory.

Although, in the United States Constitution, international migration policy was not and is not one of the enumerated powers of Congress, the Court decided in this case that the political branches also have powers not enumerated in the constitution. This is the case of the power to maintain its national and international sovereignty which includes the right to control its territory and safeguard its security. The Chinese case can be considered one of the starting points of the sovereignty theory inside the Judiciary which gives the federal government “plenary power” on all foreign policies.

A little over a century has passed since The Chinese Exclusion case, and some lawyers and political scientists still consider nowadays this case as representative of the Judiciary position toward international migration issues. But lots of changes took place on the matter up to the point that the Chinese nowadays are one of the biggest groups of immigrants able to succeed in judicial claims against federal government decisions. Therefore, a more detailed analysis of Supreme Court position and mainly federal courts decisions toward immigrant claims would make us arguing whether courts are really denying judicial review for immigrants in the name of the “plenary power” of Congress on foreign affairs .

In an attempt to better understand the role of the American Judiciary on the issue of international migration, the article will proceed in two steps: (1) part one will review the theory of sovereignty or the “plenary power” procedure used by the Supreme Court and show its the lack of judicial foundation. The idea of this first part is to present the basic discourse used by courts to deny immigrants the possibility of judicial review and how it contradicts the constitution and the basic procedures used in cases of judicial review. (2) Part two will consider the increasing tendency of federal courts to deny this theory by accepting judicial review on immigration cases. In this second part, the idea is to show the tendency, more and more common, towards the expansion of judicial power in new areas of politics such as foreign affairs, generally considered as belonging to the federal government domain. The point will be presented by showing how fundamental rights, or in other words, “transnational procedures”, are the basic instruments that protect immigrants and how they are articulated inside the national judicial frame. The idea is to show how courts tend to highlight in their decisions the importance not only of the constitution but also the importance of the social links established by the immigrant in the American society.


The discussion below attempts to show the lack of judicial foundation in courts decisions that emphasize the theory of sovereignty and deny immigrants the possibility of judicial review. The argument follow three paths: (1) in the first part, I will present some cases where the courts began to apply this doctrine and the basic pillars of their judicial discourse. (2) secondly, I will try to show how the denial of judicial review for immigrants contradicts the general principles of law formulated in the constitution. (3) Considering the American judicial tradition, I will show that it can be argued that the general principles of law are less important than the circumstances of the case in the judicial decision of courts. A better analysis of the American judicial system makes it possible to say that the normative in the judicial field comes less from the constitution and much more from the usual procedures used by courts. The common procedures more than the law in itself form the judicial standard used by judges. Therefore, the intention of the third part is to show how judicial abstention in immigrant cases also contradicts these norms based on procedures.

The first important point to stress is that the sovereignty theory is a creation of the Supreme court itself. The idea of giving plenary power to federal government was conceived to be applied in foreign affairs, a domain that would start to belong exclusively to the political branches. Since the plenary power doctrine in immigration matters is a product of the jurisprudence created by the Supreme Court in the nineteenth century, the first statement would be that judicial abstention in these matters did not have any sort of textual commitment.

This practice of abstention became however so common in the Judiciary that courts used to apply the principle of “plenary power” in foreign affairs without even articulating reasons. Nonetheless it is still possible to collect some courts statements where judges presented explanations in the attempt to better justify their decisions. The leading case of judicial abstention in foreign affairs was in 1839. The Court concluded the case by saying:

“And can there be any doubt, that when the executive branch of government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the Court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union”.

When the concerns focus on international migration, the Chinese Exclusion case come in mind as the first one on this matter to apply the doctrine of judicial abstention. It is however important to notice that, after the jurisprudence formulated in this case, immigration started also to be considered and included inside the possible threats to the sovereignty of the State. And as the Court concluded: if a nation “could not exclude aliens it would be to that extent subject to the control of another power”. The argument used by the Supreme Court was almost the same in the other well known Chinese case: “the United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective”.

The concept of self preservation was the one more used by courts to make clear the importance that they were giving to the idea of sovereignty: “every sovereign nation has the power, as inherent in sovereignty, and essential to self preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe” .

In several later cases, courts discourse would quote directly the importance of preserving the sovereignty of the nation-state. The focus on the sovereignty theory became even more clear when the Supreme Court finally stated that the State in order to be sovereign should have plenary authority within its territory. And for that goal, the Judiciary should have no interference in foreign affairs. The Court concluded the case by saying: “who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question....”.

Political explanations in the judicial discourse started to become common sense, being gradually reinforced by several judicial decisions. The discourse of State sovereignty would take an even broader dimension, Courts would identify cases not only as a threat to national security but also as a threat to public welfare, to public institutions, or even in a vaguer sense as a threat to the national interest. Therefore, since there was a judicial claim concerning foreign policies, state legitimacy would not be perceived as the junction of constitutional rights and popular sovereignty. Democratic legitimacy would be based only on the political branches. In court discourses the common term “national interest” would be defined and applied as being a wish of the Congress and whose decision would be considered as final to the Judiciary.

These cases make clear that the Judiciary position in foreign affairs would be done in order to maintain a foreign policy as homogeneous and uniform as possible, even if for that achievement foreign policy needs to loose its judicial basis and to become exclusively a political issue, concerning only the political branch. There should be no constitutional obstacle able to imply a possible judicial review. This tendency of federal courts raises several judicial issues: Does the American constitution limits the scope of judicial review? Is there any amendment that guarantee the federal government plenary power? And, if that is the case, in which issues do the political branches have plenary power?

The United States Constitution limits the power of the Congress in two ways. First, the federal government is considered to have constitutionally enumerated powers and it must tie its action to one of the federal powers enumerated. In the case of foreign affairs, the constitution grants some powers to the political branches. More precisely, it grants Congress the power “to regulate commerce with foreign Nations... to declare War .... to raise and support Armies... to provide and maintain a Navy” and it grants the President the power to make “treaties, appoint ambassadors”. And the President is also considered “the commander in chief of the Army and Navy”.

The text makes clear the fact that the authority to exclude immigrants does not come from constitutionally enumerated powers. This position toward immigrants would come exclusively from the Supreme Court's autonomous decision to expand these enumerated powers of Congress to all foreign affairs. Therefore, once one has a more critical approach to the issue, one could consider the tendency of the Supreme Court to act in such a way as being an extrapolation of the constitutional text.

Secondly, there are several constitutional affirmative limitations of the power of the federal government. These are all the provisions that protect individual rights and describe all the actions that the federal government may not undertake. Therefore, one can state that there is another constitutional contradiction in courts application of the sovereignty theory. The use of this theory would imply not an extrapolation but much more a disregard of the constitutional text. Putting it in other words: even if the enumerated powers in the constitution allows Congress to have plenary autonomy in some policies that concern foreign affairs, its extension to all foreign policies can only be done by ignoring an important part of the American constitution. In following the constitutional text, the argument against the plenary power doctrine would be to say that “immigrants to or inside the US” should also be protected by the American jurisdiction. And, indeed, the Fourteenth Amendment, in its second sentence of section one, states that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. The norm that comes from the constitution has an universal and neutral feature, “due process and equal protection” should be conceived and applied to all person without any national distinction. The amendment makes clear the division between the rights which concern only citizens and which concern all individuals or, more precisely, “person”. By following this path, the common and more evident tendency in all judicial critics is to consider the plenary authority given to federal government as being an anomaly of the constitutional text, or, in a more political sense, as not respecting to the constitutional legitimacy of the state.

Perhaps the lack of respect to the Constitution in Supreme Court decisions is not the only and the strongest contradiction that should be presented when one talks about judicial solution of conflicts. It is well known that the judicial model that predominates in the US has never been the one based on codified law where the goal of courts is to deduce the decision from general rules, codes and law. On the contrary, the classical relation between rules and decision is turned up-side down in order to put the facts and the social circumstances of the case in a higher degree of importance. It would be more correct to say that what comes first for American judges is the decision and only then comes the law, the latter being much more deduced or created by the first. This realistic canon of the sociological jurisprudence tradition has always been very strong in the American judicial analysis.

There is however a common argument usually raised against this “realistic” approach of the American judicial model. The critique considers that this “realistic view” of the Judiciary tends to limit and even deny the possibility for a certain normative able to guide court decisions to emerge. This judicial tendency would imply the reduction of the right to the fact, and a view of the judicial landscape as a multiplicity of different decisions. In a way it would be impossible to link one decision to another. The normative is diluted and the result is a sort of atomization of the judicial field where what characterizes decisions are their particularities and not their similarities.

In contradiction with this chaotic impression of the American judiciary, there is another tendency that considers the judicial decisions not as free and loose as it would appear in the former approach. In this different view, decisions would be attached not to general rules and aprioristic norms but to a set of “common procedures” that all courts would tend to follow. From that perspective, every court would: first, try to solve the conflicts that are presented to them; secondly, balance the interest of the parts inside the conflict; and, finally, take a decision as optimal as possible, in a sense that the decision would result in the least damage possible for all parts involved. Therefore, court decisions would have as a basic criteria the effort to display as much as possible the courts' traditional position of neutrality. And the strength of this normative based on procedures would get stronger the higher the court position is in the judicial scale. Therefore, the Supreme Court's decisions would be the most neutral in the balance of interests in the dispute.

If it is correct to say that there is a sort of normative that comes from the common procedures used by courts, judicial critique in immigration cases can also be done by showing the lack of these procedures in the way that courts decided to consider immigration as a foreign political issue that required for judicial restraint. Following this critique, if courts do not apply the constitutional text directly, it should use at least the same judicial procedures applied in other constitutional review cases. In other words, federal courts should first of all balance and analyze the assumption of considering international migration as a possible threat to the nation-state sovereignty.

Secondly, in each case in which courts decide that the federal government really has a reasonable motivation in its action, the decision based on a political justification should only be judicially relevant if it is done by using the common procedures of a judicial process. Once following this path , courts, after showing the reasonableness of the decision, should proceed by balancing the interest of the parts (rights for immigrants or the exclusion decision of to the federal government). Finally, the decision should be as neutral as possible in order to really promote the less damage decision to all parts. Therefore, immigration cases would not suffer from judicial abdication and would be reviewed on the basis of common law procedures. To sum up, this would imply courts should bear the burden of “proof of evidence” in order to attain “due deference”.

Following this perspective, there is a tendency of courts to escape not only the norms forged by the constitution but also the norms based on the judicial procedures commonly used by federal courts. Then, it is possible to conclude that, once the plenary power doctrine was used, it was the political structure, in which the judiciary is integrated, that had more relevance in courts decisions toward immigrants. Once applying the doctrine of deference, the judiciary is considering itself much more as one of the parts of a political organization (the nation-state) than as an institution able to protect fundamental rights. Therefore, instead of playing the traditional functional position of balancing power between individuals and the federal government, courts are playing the role of an institution looking much more to the political structure than to individuals and society. By using this way of proceeding, courts make clear that the social links established by the immigrant in the host society almost do not count in judicial decisions.

By analyzing the court's discourse that justify deference in foreign affairs, the point appears even more evident. Once they consider a political explanation more than a satisfactory argument to deny judicial review, courts emphasize decisions that highlight the priority of state sovereignty in immigration cases and in all other foreign affairs issues. Once they take this position, the courts are at the same time saying that the sovereign state should be interpreted as a state that has an homogeneous, unitary and well sustained policy toward foreigners. Their decision for deference shows an approach to international relations that only recognizes the state as an important international actor. And the relevance of transnational relations established by the American society and foreigners appears to be completely irrelevant in their decision.


The main focus of this part is to present how the Judiciary has been denying the sovereignty theory on issues that concern immigrants. The argument follow three steps: (1) if courts started to conceive judicial review toward immigrants, one assumption can be raised: there is a tendency of the Judiciary to play a more political role and not follow blindly the wishes of the legislator. Therefore, the first point is to examine how this trend of position emerged in federal courts decisions. (2) Secondly, I will present the basic judicial criteria for courts to review federal government decisions over immigrants. (3) Finally, it will be argued that once it has accepted judicial review the judiciary tends to reinforce the protection of individual fundamental rights. And by doing so, it tends to conceive and apply rights independent of the national origins of the individuals involved in the judicial conflict.

- judicializing immigration policy

The expansion of judicial power is associated with the increasing role that courts are playing in the political sphere. The third pillar is far from being considered as having the automatic function of applying laws elaborated by Congress. The political capacity of courts comes from basically two paths: first, it arises from the power of judicial review, i.e., verify the content of new laws and its compatibility with regard to the constitution. Secondly, it comes, following a more realistic frame, from the increasing tendency of judges to replace in several cases the role of the legislators and to become judicial law-makers.

This court tendency to have a political role more than only a judicial one is not recent in America. This “judicialization” of politics is however less common in particular setting such as foreign affairs. International migration can be taken as an example of this phenomenon of transforming foreign affairs from a nonjudicial decision-making process into a policy-decision process more dominated by legalistic rules and procedures. In the case of immigration, the change means that exclusion, deportation, visa denial, naturalization, citizenship and asylum policies toward immigrants are no longer exclusively in the hands of the political branches of power. They are also submitted to the third pillar that has been increasingly invalidating acts made by federal government agencies.

On matters concerning immigration policy, the idea of perceiving judges as legislators does not come from the fact that courts are voiding laws and creating new ones on the issue. On the contrary, the common tendency of the Supreme Court in the United States is more to respect than to interfere in the immigration and naturalization acts elaborated by the Congress. The idea about the legislative power of judges is based on the consideration that the simple act of interpreting the constitutional text can be already considered as a policy-making process on the issue of international migration.

It is curious to notice that the first political role played by the judiciary on the issue of international migration was not as recent as the common literature would make us believe. In fact it was, on the contrary, just after the Chinese exclusion case that the judiciary presented its discontent with denying immigrants judicial review. The Sing Tuck case can be taken as an example. To avoid an exclusion decision, a Chinese, followed by thirty-two other applicants, requested the judicial review of an immigration officer's decision in a federal court. The first step was done on the basis of an habeas corpus petition . The Chinese affirmed that he was born in the United States and could not be excluded from the American territory. The possibility of being an American would give him citizen rights. It means that he could not be deprived of his liberty or property without due process, i.e., without a judicial trial. He got to confirm the fact that he was born in the US by the statement of two testimonies. Since there was no evidence against this possible fact, the court decided that exclusion was not fair in this case. In other words, the court justified the decision by affirming a lack of due process on the act of exclusion.

The same procedure happened in several other cases up to the point that the federal government advised federal courts that they were rejecting the immigration federal statute passed by Congress (the act of 1894) that makes the decision of immigration inspectors final. In any case, maybe all the parts involved in the process, even the judges, knew that the Chinese were lying, but lower federal courts preferred, instead of giving federal government plenary autonomy to do acts of exclusion and deportation, to review all the cases of Chinese that claimed to be American citizens. Therefore, the way immigrants used to escape from federal immigration control was the possible access to constitutional rights (due process). The fact of knowing that the Chinese were lying in their statements gives us a reason to believe that judges were acting in a very political sense against federal government decisions on immigration control. The judicial frame was offering courts the possibility to put a break on the effectiveness of federal government immigration control and to offer the Chinese at least one avenue to enter the country.

Although the preference of lower federal courts was to concede judicial review, political deference would start to become predominant in federal courts after the Supreme Court decision on the issue of immigrant exclusion. In fact, the possibility for the Chinese to claim American citizenship in order to avoid exclusion took an end in The Ju Toy case. After this case the Court decided not to make any further distinctions between aliens and citizens and to subject both to only one federal authority, i.e., to the immigration officer. Once again there was no more avenues for the Chinese to enter the country and discretion was reestablished on the issue with a new deficit, the disrespect of the 5th amendment that gives all citizens the right to due process.

To sum up, the Chinese cases present an important point. The fact of giving the Chinese the possibility of having a trial would make all exclusion laws ineffective. It would be a clear and direct denial of federal government decisions on immigration. In the name of a political reason the Supreme court took the abstention position and abandoned all possible judicial arguments and let its jurisprudence proceed with a higher constitutional deficit. After the Court's decision, all federal courts would follow this new jurisprudence. The new behavior toward immigration policies would be perceived not only as a disrespect to personal rights but also to citizens rights.

So just after the Chinese exclusion case the third pillar started this sort of slowly transformation on immigration policies. Although these cases have shown the insatisfaction of federal courts toward federal government decision on immigration issues, the common tendency of courts during almost the whole 20th century has been to deny judicial review to immigrants. There were several single cases that can be considered as the exception rather than as the common standard of the Judiciary. The tendency to refute the plenary power doctrine and to concede judicial review to immigrants started to become an usual procedure of lower federal courts only in the late seventies and beginning of eighties.

-Using due process and equal protection

It is important to notice however that the jurisprudence giving immigrant access to constitutional rights is not a recent event. The Supreme court decided, also in the beginning of the century, to give immigrants the possibility of judicial review in cases of deportation. It was in the Japanese Immigration case that the Court decided that “an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population” is entitled to due process and cannot be “deported without giving him all opportunity to be heard upon questions involving his right to be and remain in the United States”. This case would put at least cases of deportation inside the frame of judicial review, based on the immigrant rights to due process, i.e., the possibility to be heard in a trial.

The plenary power doctrine would nevertheless dominate all the other courts decisions in cases of exclusion and deportation where the claims were based on procedural due process. This doctrine would be even used in deportation cases of permanent resident immigrants. The classic decision was taken by the Supreme Court in Harisiades v. Shaughnessy . In this case, several permanent immigrants had received an order of deportation because of their membership in the Communist party. The judicial claim was based on two main arguments. First, the immigrant possessed the right to remain in the country. Secondly, following this right, the justifications for deportation would entail the reasonableness of the decision, proofs that legitimate the governmental interest against the individual freedom of association guaranteed by the First Amendment. The Court concluded the case by stating that Congress decisions are “largely immune from judicial interference”. The other main case of communist affiliation would come later on, in 1972. The interesting point in the case of Kleindienst v. Mandel is that the Court admitted the importance of balancing the interest of the federal government against the individual right to free expression. The Court took however a position in favor of the government decision by saying that no balance of interest was necessary in this case because there was a “factually legitimate and bona fide” reason for the exclusion.

In 1982, however, a judicial shift in favor of the immigrant took place, the Supreme court would reinforce once again its position in favor of judicial review. In contrast with the common procedure, the court decided to put also cases of resident immigrants who were denied reentry into the country under the scope of judicial review. The point defended by the court was clear: once living in the US an immigrant even out of the country should also have access to constitutional rights. In the case of Plasencia, Justice O'Connor defined well the limits of the plenary power of federal government decisions: “an alien seeking admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative...However, once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.”

On the late 80s, the transformation of the courts position in immigrant cases attained its higher level. An important aspect of this change is the fact that even the consideration of admission as a privilege started to be put in check and the alien started to get access to constitutional review of her/his application to enter the country. The case of Hortensia Allende (the widow of Salvador Allende) can be seen as an example of the different position that federal courts were taking toward communist affiliation cases and concession of judicial review in visa denial claims. In this case, the consular officer's visa denial was based on the national security provision of the INA (Immigration and Nationality Act) that justify exclusion of aliens that are members of Communist associations. Contrary to Mandel's case, the court took the te) than as the plrefoido and shuck down the statute of communist affiliation of the INA by stating that a difference should be established between the simple fact of entry and presence of an alien and the expected Communist activities after entry. And the 1st circuit court ruled the case in favor of Ms. Allende's cause. It is important to notice that, after this case, the INA reform of 1990 decided that exclusion for members of the Communist party would only apply to immigration applicants.

The ideological exclusion took a final end in Rafeedie v. INS. The exclusion of Raffeedie, a returning permanent resident, was based also on the national security provision of the INA by considering him a terrorist with a high position in the Popular Front for the Liberation of Palestine. The court denied the INS decision and stated that this alien could invoke full First Amendment protection and that the provision was “unconstitutional for overbreadth and vagueness”. All these cases make clear the change of the courts position toward immigrant judicial claims. Instead of accepting and using political justification to deny judicial review, the courts decided not only to offer them the possibility of judicial review, basically on the basis of due process, but also to put in question even the INA provisions that justify exclusion on the basis of political reasons, i.e., as being a threat to the sovereignty of the State. It makes clear that the sovereignty idea to safeguard the American security is not a very reasonable criteria to exclude an alien.

The most famous Supreme Court case that shows the more evident tendency to put an end to the plenary power doctrine has been INS v. Chadha. In this case, the Court struck down a provision of the INA as unconstitutional. This provision used to give the House of Congress the possibility to nullify a suspension of deportation. In this case, an immigrant got a suspension of deportation made by a lower federal court. The House of Congress used its “legislative veto” and disapproved the suspension. The Court ruled the case in favor of the alien by saying that “the plenary authority of Congress over aliens under the naturalization clause is not open to question, but what is challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power”. Although law scholars tend to see this case more as an intenthan as the Court to put an end to “legislative vetoes” than as an intent to change immigration law, it seems that the decision shows the Court consciousness to not apply the plenary power doctrine.

The transformation of immigration law should not be limited to what courts have done to reinforce basic rights, it is also an issue of the different procedures that the courts started to have in order to put in practice these basic rights (due process and equal protection). Just giving immigrants due process does not mean that s/he can remain in the country. In fact, the majority of the deportation orders are applied following the INA statute that courts tend to respect. This behavior of respect would make one believe that all judicial claims based on due process would be admitted for review but the decision would be in favor of federal government agencies. The important point is that Courts however do not apply the rules elaborated in the INA blindly. They decide to use also the principle of proportionality (balancing interests inside the conflict) and, therefore, to reinforce the circumstances and facts able to protect the immigrant against federal government decisions.

This normative based more on procedure than on the law means that a worry about the immigrant social ties in the host country started to become more and more a relevant argument raised by lawyers in an attempt to avoid deportation decisions of the INS toward immigrant clients. The relevance of social ties makes clear that illegal immigrants are not judged only on the basis of respecting or disrespecting the national law on immigration. Society and its transnational configuration, that incorporates the illegal immigrant, is taken into account against the national border limited legislation. Therefore, it is possible to notice that immigration law started to become less a foreign affairs issue and much more a public law issue that, like all the several others, is also submitted to judicial review.

This sociological approach of judges to the issue of immigration became more evident in the famous Supreme Court case Plyer v. Doe. The judicial claim was based on the clause of “equal protection” for a child of illegal immigrants whose access to public school had been denied. And the Court ruled the case in favor of the plrefoido and reinforced the argument that the state of Texas's denial of public education to undocumented immigrant children violates the “equal protection” clause of the constitution. The case makes clear that the benefits of national membership is not limited to citizens and should also encompass the whole society that is under American jurisdiction independent of their national origin and political status.

Even though the case did not concern illegal immigrants directly, it highlighted the judicial tendency to avoid all sort of possible discrimination against immigrants (the term alien is more appropriated) and national citizens. The emphasis of this case on equal treatment from state agencies could be seen as important for immigrants as the case of Brown v. Board of Education for Black Americans. The Court stresses that nationality, like race and ethnicity, is a suspect classification, in the sense that it can also be a tool able to promote discrimination.

By deciding the case in favor of the immigrant, the Court recognizes also the fact that both Americans and immigrants are part of the same society and share the same social institutions. The position of the Court in this case made some law scholars consider Plyer v. Doe as a shift of paradigm in law culture. The trend would be the one from a nationalist to a more communitarian judicial approach on the issue of immigration. The case can be considered as symbolic of the American judicial position toward immigrants, in a sense that it represents a new period in American federal courts. It marks a new age more characterized by an “alien protection jurisprudence”. This new tendency of the Judiciary is already well established nowadays in courts, where immigration cases constitute the majority of judicial claims that concerns administrative law and the rate of immigrant claims success is quite high compared to precedent decades.


The analysis of the Judiciary approach toward immigrants shows that courts tend to not consider anymore immigration as being a foreign affair issue, on which federal government should have “plenary power”. Immigration should be treated as an issue belonging to the public law domain and concerning members of a society under federal court jurisdiction. The political shift of the Judiciary shows that immigration law should be no longer insulated from judicial fundamental norms and procedures. The access to national federal courts is not limited anymore to Americans, it is also available to noncitizens (being them legal or illegal).

The evolution of immigration judicial decision can be considered as representative of the importance that the Judiciary is giving to the transnational configuration of American society. The main argument was to show how the Judiciary is more and more concerned with the protection of fundamental rights in spite of the national origins of the individuals. In a sense that the immigrant's non access to judicial review in case of exclusion or deportation tends to be almost impossible nowadays. The Judiciary by this new approach towards immigrants opened the doors of the state to noncitizen populations and legitimized their membership by the universalistic frame of constitutional rights which are not anymore limited to the protection of American citizens.


© Réseau Européen Droit et Société