Class 5: Beyond Due Process: Speech and Equality

The idea of a “ plenary power” doctrine that emerges from Mezei and the other cases we read last class was applied, in those cases, to due process claims. But what about other rights claims raised by migrants: when a noncitizen argues that the government’s immigration policy surpresses his speech, or discriminates against him on the basis of his sex, does the Court apply the usual constitutional tests and doctrines that would govern a speech or equality claim? Or does it apply a different framework?

In these cases our first goal is to figure out whether the Court is doing something ordinary or exceptional when it evaluates speech and equality claims leveled against immigration policies. If the Court is doing something exceptional, then our second goal is to figure out why and in what way it is departing from ordinary principles of constitutional law.

Reading:

  • Harisiades v. Shaugnessy (634-46)

  • Kleindienst v. Mandel (589-97)

  • Fiallo v. Bell (296-305 & n.1)

As you read, consider the following questions:

  1. In Harisiades, does the Court reject Harisiades First Amendment claim because it concludes that he has no First Amendment rights? If not, then why does this claim fail?

  2. In Kleindienst v. Mandel, why does the Court refuse to peek behind the reason given for excluding Mandel?

  3. In Fiallo v. Bell, the Court applies the test initially formulated in Kleindienst v. Mandel. In response to appellants’s attempt to distinguish Mandel, the Court says “we can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel.” Can you?

  4. With respect to the sex classification in Fiallo, the Court says “it is clear from our cases that these are policy questions entrusted exclusively to the political branches of our government, and we have no judicial authority to substitute our political judgments for that of Congress.” (p.300) The Court appears to be referring to cases it cited at the outset of its discussion on page 297, which included Mezei, Fong Yue Ting, and Chae Chan Ping. How do those cases support the Court’s conclusion here?

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