The Plenary Power Shield: National Security and the Special Registration Program, Nitin Goyal
The plenary power doctrine protects the federal government from claims that it is violating an individual's constitutional right to equal protection when it imposes discriminatory burdens on non-US citizens. This doctrine is justified on the rationale that the constitution provides congress and the executive with primacy over foreign policy and national security. Because immigration is assumed to be tied to foreign policy and national security, courts will subject federal immigration statutes and regulations to only deferential review (Sevandal 746).
This insulation from judicial review enabled the INS and later the Department of Homeland Security (DHS) to implement the Special Registration Program from September 11, 2002 to December 1, 2003. This program provides a stark example of the misuse of the plenary power doctrine to justify the violation of non-US citizens' equal protection rights for the supposed sake of national security. The program targeted men from countries with large Muslim populations by requiring them to register and periodically re-register with immigration officials regarding their visa status (Lohmeyer 140). While the program was enacted under the auspices of national security, in reality it was nothing more than a means to persecute persons of a particular nationality and religious faith.
As illustrated with the Special Registration Program, automatically accepting the inherent relationship between national security/foreign policy and immigration and thus enabling the use of the plenary power doctrine leads to abuse. Rather that merely accept and/or assume the proposition that the plenary power doctrine applies, the court should provide more searching judicial review in determining as a preliminary matter that the federal statute or regulation was actually enacted for the purpose of national security or foreign policy objectives before applying the plenary power doctrine.
On September 11, 2002 then Attorney General Ashcroft instituted and expanded the National Security Entry-Exit Registration Program (NSEERS), of which the special registration program was one component (Twibell 443). The Special Registration program applied to legal nonimmigrant males above the age of 16, who were from one of 25 countries and were present in the US prior to September 10, 2002 (Ibid 443- 444). Of the 25 countries, 24 consisted of a predominantly Muslim population. Countries were clustered into four groups 1 , and each group was assigned a window within which the initial registration had be completed (Sevandal 738). Following the initial registration, the registrant was required to report to immigration officials after 30 days and then every 12 months. The registrant also had to notify officials of any change of address, employment, or school (Ibid 737-738). In addition, all NSEERS registrants had to depart via designated ports of entry, where their departure was confirmed and recorded by an immigration officer (Lohmeyer 144).
At the initial registration, immigration officials interrogated, fingerprinted, and photographed the registrant to verify his identify (Sevandal 739). During the initial and subsequent interviews, the registrant was subject to more interrogations in order to ensure that he was complying with the terms of his visa (Ibid). Failure to comply with any of these requirements constituted a violation of the terms of the non-immigrant visa and thus grounds for deportation (Ibid 739-740).
On December 1, 2003 the Department of Homeland Security suspended the special registration requirement that mandated certain non-immigrants to re-register after 30 days and on a yearly basis from the date of initial registration (Wong 191-192). However, the DHS still has the discretion to ask those already registered to re-register (Ibid 192). Since the beginning of the program to its end, 83,519 individuals have registered (Ibid). Of these 13,799 Notices to Appear were issued, of which 1 in 5 or 2,870 persons were detained (Ibid). Many of those detained were kept in over-crowded cells and denied food, sleep, and necessary medicine (Sevandal 740). Moreover, a large number of those found to be in violation were persons who had properly applied for visas, but were still awaiting pending paperwork from immigration officials (Ibid).
The federal government justified the special registration program on the basis of national security. In the introduction to the final rule concerning the Special Registration Program, the Department of Justice (DOJ) stated that, “recent terrorist incidents highlight the need” for such regulations (67 Fed. Reg. 52,584). Speaking about the program, then Attorney General Ashcroft stated that it only applied to “individuals of elevated national security concern.” (Lohmeyer 146).
Based on this discourse, the courts in reviewing the constitutionality of the special registration program blindly accepted that the program was an issue of national security and, as a result, was only entitled to deferential judicial review because of the plenary power doctrine. For example, in Kandamar v Gonzalez, 464 F.3d 65, (1st Cir 2006),the court rejected a Moroccan non-immigrant's claim that the special registration program was unconstitutional because it only applied to persons of certain nationalities with large Muslim populations. The court, specifically citing the national security justifications for the regulation and the special deference given to the executive and legislative branches over issues of immigration, only applied rational basis review and upheld the regulation's constitutionality (Kadamar, 464 F.3d at 72-73).
Consequently, the invocation of national security insulated the government's actions from serious judicial review because of the protections provided by the plenary power doctrine. If the courts had applied at least minimal review of the program to determine as a preliminary matter whether the program concerned national security, they would have realized that the program only used national security as a cover for animus, and as a result, deferential judicial review was inappropriate because the shield of the plenary power doctrine was inapplicable.
If the program had pertained to national security, it would have been implemented in a systematic and uniform manner. The reality, however, was far from this. The DOJ/DHS failed to inform immigration offices about the procedure to follow during their interrogations. For instance, some immigration offices permitted attorney's to accompany the registrants, while other offices did not (Sevandal 742). In some locations, officials arrested registrants for having expired visas and posted their bond at more than 10,000 dollars (Ibid). However, in other locations, where registrants had similar circumstances, officials did not arrest them or gave such persons bond at only 100 dollars (Ibid). Moreover, depending on the location, immigration official asked registrants where and how often they pray, while others never engaged in such questioning (Ibid). If the government was at all serious in protecting the country's national security, one would assume that there would be almost identical procedures and questioning of the registrants.
Additionally, the DOJ/DHS failed to adequately inform persons of the registration requirements. The DOJ, for example, issued its first press release about the special registration requirements only ten days before the first registration deadline for persons in the first group (Ibid). Moreover, officials indicated that they would not publish any more press releases (Ibid 742-743). Rather, potential registrants had to rely on the Federal Register to learn of new registration requirements. As a result, many people were left uninformed that they had to register. Had national security been a legitimate concern, the government would have had an interest in adequately notifying such persons of the registration deadlines so that the government could place such persons in their files and be able to periodically interrogate them. Thus, the poor and ad hoc implementation of the program, in terms of both the lack of a uniform interrogation procedure and the failure to notify potential registrants, could have easily alerted reviewing courts that the government's purported national security justification was suspect and that more exacting judicial review was required before applying the plenary power doctrine
In addition, the alienation felt by Muslim-American communities that they were being singled out should have raised suspicion that the special registration program was not implemented for national security, but rather for animus. The program was targeting individuals not just on the basis of alienage, but rather was targeting individuals within the non-immigrant category on the basis of national origin and religion. Rather than promote our national security, it was obvious that the program would act to make the US more vulnerable because of the resentment Muslim communities would feel in the US. The special registration program was seen by many members of the community as government de jure support of the verbal abuse, physical abuse, and prejudices the Muslim American community was receiving after September 11 (Sevandal 752). Moreover, many persons were angry that the program only targeted those countries with large Muslim populations even though al-Qaeda cells were deeply entrenched in European nations such as Spain, Italy, France, and Britain (Ibid 753). This alienation, caused by the Special Registration Program, should have alerted the judicial system that this program was not instituted for national security concerns because far from making the US safer, it was in fact creating resentment in Muslim communities in the US.
The Special Registration Program illustrates the danger of the judicial system blindly accepting the government's invocation of national security and/or assuming that all immigration matters relate to national security. Because of this blind acceptance, the courts did not thoroughly review the program, despite the fact that the program discriminated against non-immigrants on the basis of national origin and religion. Rather than accept the supposed symbiotic relationship between national security and immigration, the courts should make sure that such statutes or regulations were actually enacted for national security before upholding the statute as constitutional based on the plenary power doctrine. Had the judicial system actually engaged in such a review, it would have easily seen that the poor implementation of the program and the counterproductive effects the program was having on the Muslim-American community was an indication that the program was not enacted for the purpose of national security but for the agenda of racism. Our system of checks and balances requires that the judicial system provide more exacting review of such matters. If we as a nation do not want to repeat the legacies of the Chinese Exclusion Act and Japanese internment, the judicial system must reinsert itself as a real check on federal power in all matters of immigration.
1. Group 1 included Iraq, Iran, Syria, Sudan, and Libya. Group 2 included Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, UAE, and Yemen. Group 3 included Pakistan and Saudi Arabia. Group 4 included Bangladesh, Egypt, Indonesia, Jordan, and Kuwait (Sevendal 738).
Kathryn Lohmeyer, The Pitfalls of Plenary Power: A Call for Meaningful Review of NSEERS Special Registration, 25 Whittier L. Rev. 139 (2003).
Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52,584 (Aug. 12, 2002)
Mary M Sevandal, Special Registration: Discrimination in the Name of National Security, 8 J. Gender Race & Just. 735 (2005).
Ty S. Twibell, The Road To Internment: Special Registration and Other Human Rights Violations of Arabs and Muslims in the United States, 29 Vt. L. Rev. 407 (2005).
Kam C. Wong, The USA PATRIOT ACT: A Policy of Alienation, 12 Mich. J. Race & L. 161 (2006).
Kandamar v Gonzalez, 464 F.3d 65, (1st Cir 2006).