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Home Archive Volume 61 Volume 61, Issue 6 COMMENT: Until the Plenary Power Do Us Part: Judicial Scrutiny of the Defense of Marriage Act in Immigration After Flores-Villar
COMMENT: Until the Plenary Power Do Us Part: Judicial Scrutiny of the Defense of Marriage Act in Immigration After Flores-Villar

By Jessica Portmess | 61 Am. U. L. Rev. 1825 (2012)

The Defense of Marriage Act (DOMA) effectively bars a U.S. citizen from sponsoring a foreign national same-sex spouse to immigrate to the United States. The plenary power doctrine—a standard of extraordinary deference to the political branches in immigration—may hinder judicial scrutiny of DOMA in the immigration context. In the past two decades, and most recently in Flores-Villar v. United States, the Supreme Court has failed to establish boundaries of judicial deference in immigration cases; however, dissents throughout the Court’s plenary power case law illuminate possible limitations on the doctrine’s scope.

This Comment argues that courts should adopt a limited substantive framework that confines plenary power deference to four substantive areas of immigration law: (1) admission, (2) removal, (3) naturalization, and (4) immigration policy distinctions. When determining whether a case involves one of these four substantive areas, courts should apply Justice O’Connor’s logically prior standard set out in her dissent in Nguyen v. INS. Employing this limited substantive framework and standard, DOMA is likely beyond the scope of plenary power deference. This Comment concludes that DOMA should thus be subject to traditional standards of constitutional scrutiny even in the immigration context.

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