Susan Bibler Coutin, Justin B. Richland, and Veronique Fortin have posted Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law on SSRN.
Here is the abstract:
Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the “administrative grace” to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having “always been deemed a political one, not subject” to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.