May 22, 2007
College of Law Professor Natsu Taylor Saito's new book, From Chinese Exclusion to Guantánamo Bay: Plenary Power and the Prerogative State, takes an in-depth look at controversial questions about U.S. policies and the use of executive power in the war on terror.
In her new study of the use of plenary power, Professor Saito's book puts contemporary policies in historical perspective, illustrating how the Supreme Court has facilitated such extensions of power since the 1880s.
"As lawyers, our most fundamental obligation is to the rule of law," Professor Saito commented. "In the U.S. context, this means taking the Constitution and international law seriously. However, in a number of areas of law, the judiciary has invoked the 'plenary power' doctrine to allow the executive and legislative branches to sidestep constitutional constraints."
Saito said the application of this doctrine - in immigration law, the governing of American Indian nations and U.S. territories such as Puerto Rico, and in national security matters - shows a historical continuity that belies the claim that any particular case is an aberration.
"I think it's critical to pay attention to these patterns," she added. "When we allow the rule of law to be disregarded, we come ever closer to living in what Ernst Fraenkel called a prerogative state, characterized by 'unlimited arbitrariness and violence unchecked by any legal guarantees.'"
David Cole, the author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, had praise for Professor Saito's work.
"(Saito's book is) a brilliant exposition of how absolute power corrupts absolutely, both before and after 9/11, and an eloquent argument for why it is critical that we reclaim principles of equality, democracy and the rule of law," remarked Cole.
Professor Saito's new book was published by The University Press of Colorado. In addition to her writing, she teaches courses at the COL in international law and human rights; criminal procedure; professional responsibility; race, ethnicity and the law; and immigration law.