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News Posted on October 6, 2017

Dean Johnson Publishes SCOTUSblog Entries on Supreme Court Immigration Cases

Dean Kevin R. Johnson recently published a series of entries on SCOTUSblog, previewing and reviewing the U.S. Supreme Court oral arguments in two immigration cases: Sessions v. Dimaya and Jennings v. Rodriguez. With these cases, it appears the court may be set to reconsider the “plenary power” doctrine, which holds that Congress and the Executive Branch have sole power to regulate immigration, Dean Johnson writes.

In Sessions v. Dimaya, the Court will decide whether immigration laws that require deportation for “crimes of violence” are unconstitutionally vague. In Jennings v. Rodriguez, the government is appealing a U.S. Court of Appeals for the Ninth Circuit decision that found detained immigrants may not be held indefinitely without a bond hearing. Both cases raise the larger issue of whether and to what degree immigration laws are subject to judicial review, Dean Johnson writes.

“Over more than two centuries, the Supreme Court has not yet firmly established that the Constitution applies (much less how it applies) to the immigration laws,” Dean Johnson writes in his preview of the oral argument in Dimaya. “Sessions v. Dimaya, along with Jennings v. Rodriguez, offers an opportunity for the court to begin to provide a full answer to this fundamental question.”

“Whatever the outcome, a decision in the case will have an immediate and significant impact,” Dean Johnson writes in a preview of Jennings v. Rodriguez.

Following oral argument in Dimaya, Dean Johnson writes in his analysis that “the tide seemed to favor Dimaya.” Newly appointed Justice Neil Gorsuch, widely expected to cast the deciding vote, appeared willing to apply the Supreme Court’s decision in Johnson v. United States, which the Ninth Circuit relied upon to find in Dimaya’s favor.

In his analysis of the oral argument in Jennings, Dean Johnson writes that “the justices seemed primed to find constitutional limits on the detention of immigrants,” and notes that the case “offers the Supreme Court the opportunity to address the modern vitality of the plenary power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens.”

Kevin R. Johnson is Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o studies at UC Davis School of Law. He is an internationally recognized scholar in the fields of immigration law and policy, refugee law, and civil rights.