Shrinking the Post-Plenary Power Problem

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In this response to Matthew J. Lindsay’s article “Disaggregating 'Immigration Law',” Kagan argues that, despite judicial discomfort, the Supreme Court has difficulty entirely discarding the plenary power doctrine because it has the power to guide resolution of the diverse array of problems that arise involving non-citizens. However, it may be a mistake to assume that all questions involving non-citizens form one coherent legal system in the manner of torts law or criminal procedure. Many different bodies of law impact non-citizens in particular ways. These disparate bodies of law together are known as “immigration law,” but perhaps the only thing they really share is that they all affect non-citizens. By breaking immigration into narrower bodies of law, each focused on a unique context and set of concerns, the difficult legal problems should become easier to manage. However, drawing on recent work by David S. Rubenstein and Pratheepan Gulasekaram, Kagan points out there is a danger in unprincipled desegregation, driven by a desire to reach particular results in individual cases.

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68 Fla. L. Rev. Forum 59 (2016).