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of unlimited executive power, specifically King George III’s prerogative powers,
Rehnquist nonetheless recognized the need for broad executive discretion.
Aliens and Immigration Policy
Conservative opposition to the constitutional claims made by individuals in
immigrant rights cases
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is founded on the plenary power doctrine, whereby immigration
matters “are so exclusively entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference” (Harisiades v. Shaughnessy, 342
U.S. 580, 589 (1952). The Court did acknowledge that the indefinite detention of
permanent resident aliens would “raise a serious constitutional problem (Zadvydas v.
U.S., 533 U.S. 678, 690 (2001), but Rehnquist wrote for a majority holding that it is not a
violation of due process for Congress to have plenary power over mandatory detention of
criminal resident aliens pending deportation hearings (Demore v. Kim, 1235 S.Ct. 1708
(2003).
Recent National Security Cases
In Rasul v. Bush, 124 S.Ct. 2686 (2004), the majority held that federal courts have
jurisdiction to consider challenges to the legality of the detention of foreign nationals
captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
Justice Stevens delivered the opinion of the Court (joined by O'Connor, Souter, Ginsburg,
and Breyer, with Kennedy concurring). Stevens noted that habeas corpus historically
served as the way to challenge the legality of Executive detention…” in wartime as well
as peace (at 2692-3). The Court distinguished this case from Johnson v. Eisentrager, 339
U.S. 763 (1950) where the Court held that federal courts lacked jurisdiction to issue writs
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In re Griffiths, 413 U.S. 717 (1973); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); Nyquist v.
Mauclet, 432 U.S. 1 (1977); Foley v. Connelie, 435 U.S. 291 (1978) Ambach v. Norwick, 441 U.S. 68
(1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982).
Convention