Where the Law is Silent: Plenary Power & the “National Security” Constitution

On the campaign trail for the 2016 Presidential Election, then-candidate Donald J. Trump spared no words in expressing his opinion on Islam. In an effort to rationalize his promise to block the entry of Muslims into the United States, he declared that “Islam hates us” and “Muslims do not respect us at all.” Eventually, he couched his campaign promise in more neutral language, characterizing it as a ban on people from countries with ties to terrorism. Nevertheless, when signing Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” President Trump looked up and remarked, “We all know what that means…”

In 2018, to the outrage and ire of many, the Supreme Court upheld the executive order in Trump v. Hawaii. But the decision was a long time in the making. 120 years prior, an earlier Supreme Court ruling established that national security decisions should be made by the legislative and executive branches, not the judiciary. This decision birthed a legal doctrine — “plenary power” — that permitted discriminatory and otherwise unconstitutional policies to be leveraged in the name of “national security.” Over the course of a century and a half, U.S. courts would defer to the executive and political branches on matters of national security rather than protecting the rights and liberties guaranteed by the U.S. Constitution. In doing so, the judiciary created a new, unwritten legal code that justified the repression of racial minorities and political dissidents. 

What follows is a brief history of this separate and less honorable “national security” Constitution.

“Conclusive Upon the Judiciary”: Chinese Exclusion and the Rise of Plenary Power 

According to historian Louis Henkin, the extent of federal power over immigration was largely a non-issue until the tail end of the 19th century. In fact, part of the 1868 Burlingame Treaty between the United States and China embraced “the inherent and inalienable right of man to change his home and allegiance, and … the mutual advantage of free migration.” By 1882, however, worsening economic conditions combined with rising racism and xenophobia led to the Chinese Exclusion Act — the first of many significant federal laws restricting immigration. Since the text of the Constitution does not explicitly address which branch of the government has power over immigration, the Chinese Exclusion Act was ripe for legal contestation.

In 1889, the Supreme Court in Chae Chan Ping v. United States heard a constitutional challenge to the federal government’s immigration power. On what grounds could Congress restrict the entry of foreigners into the nation? According to the majority opinion authored by Justice Stephen J. Field, the very nature of national sovereignty provided Congress with broad authority in the spheres of foreign affairs and immigration. The Court’s opinion referenced the California legislature’s resolution to Congress, which described an “Oriental invasion” that “was a menace to our civilization.” Justice Field downplayed the relevance of these racist intentions, emphasizing that “This Court is not a censor of the morals of other departments of the government.” He wrote on behalf of a unanimous bench that if Congress “considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security … its determination is conclusive upon the judiciary.” 

In deferring to Congress, the Court in Chae Chan Ping first established the plenary power doctrine for immigration and foreign affairs. This doctrine, which grants the political branches broad authority over national security decisions, remains strong judicial precedent today. Despite the fact that the Court in the Chinese exclusion cases never probed whether there were constitutional limits on Congress’s immigration power, in practice the plenary power doctrine has been taken to mean that there are little to none.

This absence of limits is hardly surprising, especially considering the historical context that produced plenary power. As legal scholar Natsu Taylor Saito has argued, the doctrine was first used to exclude and deny legal protections to “outsiders by virtue of their race, ethnicity, national origin or culture.” Legal scholars Eric Yamamoto and Rachel Oyama have similarly contended that the doctrine was “rooted in nineteenth-century notions of absolute national sovereignty, untethered to contemporary human rights commitments.”

Other jurists disagree. David A. Martin has pushed back on the idea that sovereignty was the basis for the plenary power doctrine, arguing instead that the Court in Chae Chan Ping invoked sovereignty “not to deny rights but instead primarily to answer a federalism question.”  In Martin’s view, since the Constitution’s text is silent on who has power over foreign affairs, Justice Field only employed the idea of sovereign nationhood to justify congressional rather than state control over international issues. Martin contends that the plenary power really stemmed from the fact that the legislature is better suited to handle national security than the judiciary — “The nation must speak with one voice.” Yet Martin’s analysis does not seriously entertain the possibility that the Court discovered this legal reasoning not because it was compelling, but because it could serve as a facade that justified discrimination against foreigners. 

Regardless of the Court’s true intentions in discovering plenary power, one cannot deny how the doctrine was subsequently used in practice. Under the guise of national security, the Court repeatedly turned a blind eye toward racially and ethnically discriminatory immigration policies. Henkin has traced this early history, arguing that the “Chinese Exclusion doctrine and its extension have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension.” For instance, in Fong Yue Ting v. United States (1893), the Court invoked the plenary power doctrine, holding that “The right of a nation to expel or deport foreigners … is as absolute and unqualified as the right to prohibit and prevent their entrance.” There was no shortage of policies in which “Congress discriminated in admission of aliens on grounds that were unacceptable in other contexts.”

The tail end of the 19th century thus witnessed the emergence of a new strand of “national security” constitutionalism. Thanks to the plenary power doctrine, the legislature could now overlook rights and liberties in the name of promoting “peace and security.” Since such actions were “conclusive upon the judiciary,” they were immune to scrutiny in the courts. As a result, national security justifications needed not be legitimate, and often served to hide the exclusionist and racist motivations at the heart of foreign policies. These features would continue to characterize “national security” constitutionalism as it evolved throughout American history.

“Inter Arma Silent Leges”: The World Wars and the Entrenchment of Plenary Power 

Once the Supreme Court had established the plenary power doctrine, the idea that national security justified extraconstitutional measures grew in power and scope. This was in part due to a culture of constitutional reverence that developed during the early 20th century. In his seminal article “Constitutionalism and the Foundations of the Security State,” Aziz Rana traces the development of modern constitutional veneration to the beginning of World War I, showing that “a plethora of political associations … intertwined loyalty to the text with aggressive national security politics.” Such activists utilized educational campaigns to generate deference toward the government, promoted cultural assimilation and homogeneity through discourses of American exceptionalism, and repressed critics of the Constitution. World War I and the threat of revolutionary extremism enabled these pro-war proponents of the Constitution to find broad public support.

At first glance, Rana’s narrative of security state constitutionalism may seem distinct from the plenary power doctrine. But the national security anxieties that shaped a culture of constitutional piety effectively substantiated the principle that Congress could have immense power — plenary power — to protect the founding document. As Rana emphasizes, constitutional veneration “has helped to shape a political context that on the one hand curbs the most extreme violations, while on the other hand promotes a vision … that systematically justifies on security grounds rights infringement in the first place.” Plenary power, which is subject to virtually no constitutional limitations, has been the vehicle for such rights violations. The national security roots of constitutional reverence further reinforced this doctrine, allowing Congress to exceed constitutional limits in the name of homeland security.

There is perhaps no better way to prove the entrenchment of national security constitutionalism than to examine its usage during World War I. Deference to Congress in the name of national security was repeatedly invoked to deny First Amendment claims. Just after entering World War I, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918 to repress anti-war propaganda. In the 1919 case Schenck v. United States, the Supreme Court unanimously upheld the conviction of Charles Schenck, a socialist who had distributed anti-war leaflets, for violating the Espionage Act. Writing for the majority, Justice Oliver Wendell Holmes articulated the “clear and present danger test,” holding that the First Amendment does not protect speech that “will bring about the substantive evils which Congress has a right to prevent.” In Debs v. United States (1919), Abrams v. United States (1919), and Schaefer v. United States (1921), the Court similarly justified the congressional infringement of civil liberties for national security purposes. Historian Petra DeWitt observes that the Espionage Act entrenched “the belief that government has an obligation to limit the rights of individuals to protect the survival of society.” The Court, who repeatedly deferred to the legislative branch on national security grounds, further constitutionalized this belief. 

The judiciary’s acquiescence to rights subversion was even more harrowing during World War II. In the infamous 1944 case Korematsu v. United States, the Supreme Court upheld President Franklin D. Roosevelt’s “Executive Order 9066,” which required people of Japanese ancestry to relocate to internment camps for national security purposes. The majority opinion, authored by Justice Hugo Black, conceded that “all legal restrictions which curtail the civil rights of a single racial group” must be subjected to “the most rigid scrutiny.” Yet rather than scrutinizing whether the executive order was necessary to serve a compelling state interest, the majority quoted the uncritically deferential decision in Hirabayashi v. United States:

Where in this reasoning was the “most rigid scrutiny” that Justice Black had called for? In his dissent, Justice Frank Murphy astutely noted the executive order’s lack of “reasonable relation to an ‘immediate, imminent, and impending’ public danger.” He emphasized that “Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Justice Murphy must have wishfully hoped that the rights-affirming principles of constitutionalism — and not the repressive ones of national security constitutionalism — would prevail. Unfortunately, the idea that “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier,” was easily reconcilable with the plenary power doctrine, and had gained wide judicial acceptance by this time.

Constitutional scholar Mark A. Graber has noted that rights and civil liberties have historically been limited whenever the targets of a policy “are ideologically or ethnically identified with America’s enemies.” Nowhere is this dynamic more evident than in General John DeWitt’s 1943 “Final Report,” used as evidence in court to argue for the military necessity of Roosevelt’s executive order. The report describes the Japanese as “an enemy race, and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”

A culture of constitutional reverence, combined with the portrayal of racial and ethnic minorities as threats to American values, only served to affirm rights-denial during the World Wars. Such is the historical context of the plenary power doctrine, a vessel for discriminatory rights infringement.

“Selling the American Way”: Cold War Constitutionalism as a Response to Communism

If there is any historical period that challenges the existence of “national security” constitutionalism, it is the Cold War era. To be sure, plenary power was initially leveraged to suppress Communist dissent, trumping civil liberties in the process. However, with the beginning of the Warren Court in 1953, the United States famously witnessed a massive expansion in civil rights, individual liberties, and minority rights. For this reason, Mark E. Brandon has attempted to allay fears about security constitutionalism, emphasizing instead that “the greatest expansion of civil and political liberty in the United States occurred in the most recent half century, a period that is an unbroken chain of wars and significant military actions.” 

How can this expansion of rights be squared with the narrative that threats to domestic security have historically resulted in rights denial? The answer lies in the overarching Cold War strategy: Fears of Communism necessitated showcasing the superiority of the American way. As a result, a constitutionalism of rights and equality would emerge and outshine security constitutionalism. 

After World War II, ideological tensions between the United States and the Soviet Union skyrocketed. Americans regarded Communism as an existential threat to liberal democratic ideals, personal autonomy, and ordinary decency.  Much scholarship has already been written about the “struggle against domestic Communism” and its “interpenetration of … politics and culture.” McCarthyism enveloped the political arena, and in the heightened anxieties of the Red Scare, constitutional liberties weakened: The Taft-Hartley Act of 1947 required professionals to swear that they were not members of the Communist Party, the Communist Control Act of 1954 criminalized membership in the Communist Party, and the House Committee on Un-American Activities aggressively investigated and subpoenaed supposed Communist sympathizers. As historian Stephen Whitfield has explained, “The wickedness ascribed to domestic Communism not only allowed Americans to indulge in forbidden desires of demolishing it outside the rules, but … also warranted its destruction within the law.” 

Naturally, during the early years of the Cold War, the Vinson Supreme Court followed suit and interpreted the Constitution to trump rights in the name of uprooting Communism. In the 1950 case American Communications Association v. Douds, the Court upheld the Taft-Hartley Act, with Chief Justice Vinson writing that “freedoms themselves are dependent upon the power of constitutional government to survive.” The next year, the Court in Dennis v. United States backed the Smith Act on the basis that Communist ideology was dangerous to the nation. The plenary power doctrine was likewise invoked to justify the deportation of a Communist’s wife in Knauff v. Shaughnessy (1950), where the Court deferred to the inherent sovereign power of the legislative and executive to “control the foreign affairs of the nation.” Most infamously, in Rosenberg v. United States (1953), the Supreme Court upheld the death sentences of accused Russian spies Julius and Ethel Rosenberg — the country’s first execution for espionage during a time of peace. Political scientist Pawel Laidler has aptly concluded that the Vinson Court, seeing the opposing ideology as a threat to the American establishment, “was very anti-communist.”

While the Red Scare had largely dissipated by the 1960s, the cultural battle against Communism endured. In her examination of pro-American propaganda during the Cold War, historian Laura A. Belmonte concluded that government and business elites “forged a remarkably consistent collective defense of ‘the American way of life’ in the uncertain world of Cold War rivalries.” They leveraged cultural media to construct a narrative of American “progress, freedom, and happiness” as a means of “defining and protecting national security.” Belmonte even shows that in an illustrated 1955 booklet titled “My America,” the United States Information Agency presented “a country in which racism, sexism, and poverty are conspicuously absent or easily defeated.”

The consequence of such propaganda was a jarring dissonance between the portrayal of American liberalism and the actual reality of rights suppression. Not only had the United States interpreted its Constitution to suppress civil liberties in the name of national security, but it also legally sanctioned racial segregation. Whitfield has observed that “segregation gave Communism a trump card in the competition for the allegiance of peoples of color.” Historian Mary L. Dudziak has similarly shown how American civil rights groups leveraged international pressure to encourage racial reform, and how the resulting “international attention … was troublesome and embarrassing” for the United States. 

In order to reconcile the glaring contradiction between the romanticized portrayal and the wicked reality of American life, the Constitution had to be seen as a guarantor of rights and freedom. From 1953 onwards, the Supreme Court began handing down some of the most rights-friendly decisions in Supreme Court history. In Brown v. Board of Education (1954), the Court famously held that school segregation was unconstitutional. In her article “Brown as a Cold War Case,” Dudziak brilliantly uncovers the national security dimensions of this landmark decision, showing that the “Justice Department briefs gave only one reason for the government’s participation in the cases: segregation harmed U.S. foreign relations.” Specifically, these briefs noted that “Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.” According to Laidler, in spite of “outer fears and national security threats, the Justices realized that people must feel secure within the borders of their country, and especially secure from arbitrary and unlawful actions of the government.” 

Given this history, Dudziak would likely agree with Graber’s theory that “Some civil rights and liberties have historically been unaffected by war,” and there have in fact been “numerous instances in which military conflict inspired some government officials to increase protections for civil rights and liberties.” Graber explains that if the war effort requires the support of those who would benefit from rights, or if the enemy prompts American leaders to prove the nation’s democratic and egalitarian traditions, then rights expansion can occur. As has been demonstrated, these concerns were particularly salient during the Cold War. The Court could afford to grant rights and liberties for non-Communists in Brown and other landmark cases. Conversely, the Court simultaneously felt compelled to suppress Communists, as it did in Knauff v. Shaughnessy (1950) and Shaughnessy vs. United States ex rel. Mezei (1953).

The threat of Communism, an ideology that compelled and appealed to many people on American soil, put the U.S. Constitution to the test — and the whole world was watching. National security constitutionalism, which had historically permitted rights infringement and discrimination, had to be outshined by a bolder and brighter constitutionalism of liberty and equality. The “national security” Constitution would still exist, but it now hid safely in the shadows of the more honorable U.S. Constitution.

“Is Korematsu Still Good Law?”: The War on Terror & Contemporary Plenary Power 

It hid, but it never left. Throughout the latter half of the twentieth century, the judiciary continued to invoke the plenary power doctrine to permit Congress to discriminate and ignore constitutional rights in immigration contexts. In the 1985 case Jean v. Nelson, the Eleventh Circuit built on Fong Yue Ting, ex rel. Mezei and other plenary power precedents to rule that noncitizens who have not been admitted “have no constitutional rights with regard to their applications, and must be content to accept whatever statutory rights and privileges they are granted by Congress.” Even prior to the September 11 attacks, the Immigration and Naturalization Service relied on plenary power to detain and deport Muslims and Arabs on the basis of evidence that they would not reveal. Writing at that time, Natsu Taylor Saito assessed that: 

The September 11 attacks and the ensuing War on Terror further cemented plenary power’s place in modern constitutional law. Congress immediately passed the USA Patriot Act and created the Department of Homeland Security, both of which greatly enhanced the government’s surveillance powers. Concerns regarding “racial and religious scapegoating” and hidden government agendas quickly emerged. Saito’s assessment revealed the Justice Department’s pretextual surveillance, questioning, and detention of thousands of Arab and Muslim male immigrants, actions that would be blatantly unconstitutional if undertaken in the context of criminal cases. Yet because the plenary power doctrine gave the political branches full reign over immigration, the Justice Department treated these as immigration cases. Saito explains that constitutional rights that would normally apply to all persons, regardless of citizenship, no longer did.

The fact that the Constitution was regarded in the national consciousness as a sacred document only further suggested that it needed to be protected from the enemy. Shortly after September 11, a member of the United States Commission on Civil Rights suggested that Arab Americans could “forget about civil rights in this country” if another terrorist attack occurred. The “birther” conspiracy, which alleged that President Barack Obama was secretly Muslim and thus attempting to subvert America, encapsulated the heightened and nonsensical fears toward Muslims and Arabs. David Cole, the National Legal Director of the American Civil Liberties Union, has aptly summarized the period’s widely held sentiment that “Something unique about the threat of terrorism … requires us to alter the constitutional balance we have long struck between government power and personal freedoms.” 

Such a potent mixture of xenophobia and patriotism presented an opportunity for President Trump to ride on the coattails of security constitutionalism. Trump, who had himself peddled the birther conspiracy for years, controversially campaigned on the promise of banning Muslims from the country. After reworking the executive order into what he called a “politically correct version,” he finally delivered on his promise of a Muslim ban in 2017. In an unsurprising exercise of the plenary power doctrine, the Supreme Court upheld the constitutionality of Trump’s executive order in Trump v. Hawaii (2018). Curiously, however, the majority opinion also claimed to overturn the “gravely wrong” ruling in Korematsu — perhaps seeking to rid the plenary power doctrine of its racist past.

In his article “Is Korematsu Still Good Law?,” legal scholar Jamal Greene has criticized this seemingly symbolic move as “empty and grotesque.” Since the majority in Hawaii did not specify which aspect of the case it was overruling, he notes that it remains unclear what it means to “overrule” Korematsu. This ambiguity turns to insult when one realizes the “disturbing resonances” between Korematsu and Hawaii: “In both cases, decisions plainly motivated by group-based animus were justified by and received near-absolute deference on the basis of specious invocations of national security,” writes Greene. 

In the Hawaii case, the Court did not not deny that Trump’s executive order was a pretext for Islamophobic policy, but instead interpreted it at face value as a national security action. The majority cited a prior national security case, Holder v. Humanitarian Law Project (2010), which established that the president is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Furthermore, the majority opinion reaffirmed “the deference traditionally accorded the President in this sphere” of national security. For these reasons, it is apparent that regardless of whether Korematsu has been “overruled,” the plenary power doctrine from which it sprang is still very much good law. 

This is not to suggest that national security constitutionalism or the plenary power doctrine are as insidious today as they were in the days of Korematsu. In characterizing the approach of today’s Court to national security, Brandon asserts that “interests of state are balanced against those of individuals, groups, or (sometimes) the body of collective citizens.” He continues that “the standards the Court employs — rationality, intermediate scrutiny, strict scrutiny, clear and present danger, and others … permit the Court to make fine judgements about the nature of military conflict, the severity of the danger to interests of state, and the character of the claimed right.” For evidence of this, one could point to cases like Hamdi v. Rumsfeld (2004), where the government’s claim that the separation-of-powers prohibited the judiciary from hearing Hamdi’s challenge was rejected by the plurality. Or one might find solace in Boumediene v. Bush (2008), which held that detainees at Guantanamo Bay were entitled to the protection of the Fifth Amendment. Better yet, perhaps Trump v. Hawaii was merely a one-off decision? 

The harsh reality is that in the context of national security, “standards” and “balancing interests” are inherently subjective and variable. As explained by Graber, rights expansion versus restriction depends on who gets restricted and how the threat at hand is perceived. To see an example of this subjectivity, look to the 2021 case United States v. Abu Zubaydah in which the Court deferred to the executive on a national security matter. The case invoked the state secrets privilege to prevent the government’s release of damning CIA evidence, despite the fact that the evidence in question was already in the public sphere through other reputable sources. The majority held that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.” But what exactly was the threat to national security here? Legal scholar Shirin Sinnar argues that there was little to none: “It’s hard to see the risk here, in a case when the former President of that country has admitted those facts and voluminous other evidence confirms them.”

The entire framework of standards, tests, and interests is incompatible with the plenary power doctrine. These frameworks imply judicial review, but the plenary power doctrine — at least at its most literal level — demands judicial deference. While in some instances the Court may employ standards of scrutiny, and though on some occasions they will overturn the legislative or executive, they never actually have to. The truth is that a long, substantial history of “national security” constitutionalism precedes them, leaving ample room for them to simply defer. 

The “National Security” Constitution 

National security concerns, oftentimes with little to no basis, have historically warranted rights infringement. The common theme has been that national security constitutionalism gains strength in the face of outsiders: The Chinese were a “menace to our civilization,” the Japanese were an “enemy race,” the Communists were “undemocratic,” and “Islam hates us.” A strong culture of constitutional reverence has reaffirmed the government’s plenary power to deny the legal rights and protections of these supposed national security threats. The unspoken truth is that the Constitution can be ignored in the name of “protecting” it, and thus the nation, from minorities.

Indeed, the historical evidence presented suggests that the United States has two Constitutions. The first is the more celebrated one, the one we thank for Brown v. Board, for equality, and for liberties. It’s the one we’re taught in school, and the one we celebrate on July 4. But there is another one. It rests quietly, hiding behind the bolder U.S. Constitution, waiting patiently for the next “threat” to national security to emerge. Empowered by the idea that the government can do whatever it takes to protect the country, it has historically justified the discrimination, rights infringement, and oppression of minority groups. And it still exists. Under our separate and less honorable “national security” Constitution, the laws are silent.