The federal Defense of Marriage Act (1) (DOMA), which defines marriage as the union of a man and a woman, is currently under attack in the Supreme Court. (2) While the main focus is federal discrimination against U.S. citizens in same-sex marriages, litigants in lower courts have also challenged the application of DOMA to immigration enforcement. (3) DOMA prevents U.S. citizens who are married to aliens of the same sex from petitioning to have their alien spouses admitted under special privileges for immediate relatives. These DOMA challenges, even if they would present strong arguments that DOMA fails heightened constitutional scrutiny in most applications, may nonetheless fail in the immigration context due to the plenary power doctrine, under which courts defer to the political branches' decisions in immigration law. In one such case, Lui v. Holder, (4) the Department of Justice (DOJ) argued on behalf of the plaintiffs that the plenary power doctrine should not apply to DOMA's immigration effects. (5)
This Chapter assesses the implications of this litigation position on the plenary power doctrine and DOMA. Examining the plenary power doctrine as applied to DOMA's constitutionality in the immigration context sheds light on the underlying source and motivation for the plenary power doctrine and highlights the continuing role that DOMA might play in the lives of binational same-sex couples. Specifically, this Chapter explores two interesting plenary power issues highlighted by the DOMA litigation. First, DOMA's silence on immigration raises the question of whether courts should apply the plenary power doctrine when the enacting branches have not explicitly stated that the statute applies in an immigration context. Second, because the executive and legislative branches have taken opposing views on the constitutionality of DOMA, the litigation poses the unique question of how courts should apply the plenary power doctrine when the executive branch argues for an interpretation in litigation against the legislative branch. This Chapter considers these issues by reference to two different visions of the plenary power.
Section A provides background on the plenary power doctrine and two potential bases for that doctrine. Section B looks at the DOMA litigation, including Lui v. Holder. Section C suggests that courts require evidence of an affirmative intent, such as a clear statement, that the political branches sought to take advantage of the plenary power before applying the doctrine. Section D discusses the extent to which a court should credit the executive's interpretation of the applicability of the plenary power doctrine. Section E provides a brief conclusion.
A. Introduction to the Plenary Power Doctrine
1. The Origins of the Plenary Power. -- The plenary power acts as a "shield" against what could otherwise be meritorious individual rights claims sounding in the equal protection and substantive due process components of the Fifth Amendment. (6) While the Constitution provides Congress the power to "establish an uniform Rule of Naturalization," (7) it does not mention plenary power over immigration. Rather, the Supreme Court first identified such a plenary power in the late 1800s in response to congressional regulation of Chinese immigration. (8) In the Chinese Exclusion Case, (9) the Supreme Court upheld the Chinese Exclusion Act (10) against a challenge arguing that Congress could not pass such a law. (11) The Court relied on principles of national independence and sovereignty in holding that Congress has the power to regulate immigration. (12) The power of exclusion "cannot be granted away or restrained on behalf of any one." (13) Determinations by the federal government in the immigration realm were "conclusive upon the judiciary." (14) Thus, the Supreme Court would not review laws or decisions by the political branches in the immigration context. (15) While the Chinese Exclusion Case focused on Congress's ability to exclude, the Court in Fong Yue Ting v. …