Cecily Zamora
The Immigration and Nationality Act (INA) is the main law governing immigration in the United States. It covers who is eligible to immigrate, how many can do so each year, who is inadmissible, and what the penalties are for violating immigration laws. While federal laws are written and enacted by Congress, the President has the power to suspend the entry of any aliens or any class of aliens into the country under Title 8, Section 1182 of the U.S. Code, part of the INA. This suspension can remain in place as long as the President deems it necessary. This power has been used by various presidents, including Barack Obama and Donald Trump, to issue executive orders concerning immigration. However, it's important to note that executive orders are not meant to change or create new laws but rather to guide administrative agencies on how to enforce existing laws.
| Characteristics | Values |
|---|---|
| Immigration laws | Give the president powers to suspend entry of any class of persons into the country |
| Immigration laws | Give the president powers to suspend entry of any aliens or class of aliens into the US if they are deemed detrimental to the interests of the US |
| Immigration and Nationality Act (INA) | Covers who is eligible to immigrate, annual immigration numbers, who is inadmissible, penalties for violating immigration laws, etc. |
| INA | Does not preempt state regulations that single out non-citizens |
| Federal immigration power | Does not preclude state regulations affecting non-citizens |
| Federal law | Does not prevent state police from communicating with federal immigration authorities |
| Executive branch | Can propose and push for new or amended immigration legislation |
| Executive orders | Are meant to tell administrative agencies how to enforce the law, but they are not supposed to change existing law or write new law |
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What You'll Learn
The President can suspend entry of any class of aliens
The President of the United States has the authority to suspend the entry of any class of aliens into the country if they are deemed detrimental to the interests of the United States. This power is derived from Title 8, Section 1182 of the U.S. Code, which is part of the Immigration and Nationality Act of 1952. This section of the code states that the President may, by proclamation, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants for a period deemed necessary.
The power to suspend the entry of aliens has been used by various presidents, including President Trump, who suspended the entry of certain nonimmigrant visa holders during the COVID-19 outbreak to protect the U.S. labor market. Similarly, President Obama claimed broad authority over immigration, choosing not to deport large groups of people.
The Supreme Court ruled in Kerry v. Din (2015) that an immigrant can be denied a visa on national security grounds without the government providing a specific reason. This ruling affirmed the president's power to restrict immigration based on national interests.
It is important to note that the Immigration and Nationality Act has been criticised for being discriminatory. President Truman vetoed the Act, calling out the discriminatory quotas set out in the law. Despite this, Congress overrode his veto, and the Act was passed.
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Immigration laws are created by Congress
Immigration laws in the United States are created by Congress. The Migration and Importation Clause, U.S. Const. art. I, § 8, cl. 11, barred Congress from outlawing the slave trade before 1808. The Supreme Court has described the power as flowing from the Constitution’s establishment of a federal government.
Congress can make laws concerning aliens that would be unconstitutional if applied to citizens. The Supreme Court has interpreted that this power applies with the most force to the admission and exclusion of nonresident aliens abroad seeking to enter the United States. This includes laws that prohibit the return of certain foreign nationals to the United States, such as Chinese labourers who had previously been issued certificates entitling them to return.
Congress has the power to determine which classes of non-citizens will be denied admission or removed, and the executive branch decides who fits within each class. The executive branch has no inherent power over immigration and must stay within the grant of authority defined by the statute. Congress need only delineate basic policy, and agencies have relatively free rein in creating procedures to implement, administer, and enforce the immigration laws.
Some scholars have argued that Congress's plenary power over immigration is susceptible to abuse, often at the expense of fundamental human rights. They argue that the current plenary power over immigration is an outdated manifestation of repression arising from racism, past wars, and cold war tensions.
While the President has the authority to suspend the entry of "any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States" under Title 8, Section 1182 of the U.S. Code, this power is derived from the Immigration and Nationality Act (INA), which was passed by Congress.
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The President can propose and push for new immigration laws
The President of the United States has the power to propose and push for new immigration laws. This is done through the use of executive orders, policy memoranda, and other actions that can shape immigration policy and practice. While the President does have some authority over immigration matters, it is important to note that there are limits to executive power in this area.
The President's authority to act on immigration matters is derived from the Constitution and laws of the United States, including the Immigration and Nationality Act (INA) and other relevant provisions. For example, the President can direct the Secretary of Homeland Security to take specific actions related to immigration enforcement and the detention of removable aliens.
In recent years, we have seen President Donald J. Trump aggressively pursue his campaign promises on immigration through a series of executive actions. This has included the removal of noncitizens, pressuring states on immigration enforcement, limiting humanitarian relief, and closing the southern border. These actions have been monitored by organisations like the New York City Bar Association, which has noted the potential legal issues raised by some of these policies.
It is important to recognise that while the President can propose and push for new immigration laws, the implementation and enforcement of these policies often involve multiple government departments and agencies. The President's proposals may also be subject to legal challenges and must operate within the boundaries set by existing legislation and the Constitution.
Overall, while the President has some influence over immigration policy, the process of creating and enacting new immigration laws is complex and involves a balance of powers between the executive, legislative, and judicial branches of the US government.
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The President can issue executive orders to tell agencies how to enforce the law
The President of the United States has the power to issue executive orders, which are signed, written, and published directives that manage the operations of federal agencies. While executive orders cannot be used to create new laws or statutes, they can be used to direct agencies on how to enforce existing laws. This means that the President can use executive orders to shape immigration policy within the scope of their constitutional authority.
The President's authority over immigration is derived from the Immigration and Nationality Act (INA) and Title 8, Section 1182 of the U.S. Code. These laws grant the President the power to suspend the entry of any class of aliens into the United States if they are deemed detrimental to the interests of the country. The President can also use executive orders to direct federal agencies, such as the Department of Homeland Security and the Department of Justice, to implement and prioritize immigration laws and policies.
For example, President Trump used executive orders to ban certain immigrants from entering the country and to restrict immigration. Similarly, President Biden signed an executive order requiring federal agencies to facilitate voter registration, which may include immigrants seeking to naturalize. Executive orders can also be used to establish policies and procedures for immigration enforcement, such as the construction of detention facilities and the prioritization of removal proceedings.
While the President has significant authority over immigration through executive orders, these orders must still comply with the Constitution and federal laws. If an executive order violates the Constitution or federal law, it can be challenged and invalidated by the courts. Additionally, executive orders can be controversial and have been criticized for causing harm, particularly to vulnerable communities, and undermining civil rights and liberties.
In conclusion, the President can issue executive orders to direct federal agencies on how to enforce immigration laws and shape immigration policy within the bounds of their constitutional authority. However, the use of executive orders in immigration must be balanced with the need to protect the rights and interests of those affected by these policies.
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The President can use executive action to expand existing programs
The President of the United States has the power to control immigration through the use of executive action, which can be used to expand existing programs and policies. This is based on the authority vested in the President by the Constitution and laws of the United States, including the Immigration and Nationality Act (INA) and relevant sections of the United States Code.
One example of this is the expansion of the Deferred Action for Childhood Arrivals (DACA) program by President Barack Obama through executive action. This program provides protection from deportation and work authorization for undocumented immigrants who entered the country as minors. While this expansion was challenged in the Supreme Court case United States v. Texas, the court ultimately upheld the use of executive action in this context.
Another instance of executive action is the expansion of expedited removal by the Department of Homeland Security (DHS) under the Biden administration. By expanding the geographic scope of expedited removal beyond the proximity of the US-Mexico border, DHS authorized immigration officers to immediately remove undocumented immigrants encountered anywhere in the country without the need for a formal removal process, except in cases where individuals request and pass a credible fear test.
Additionally, President Trump issued numerous executive orders aimed at overhauling immigration law and policy during his first and second terms. One notable example is the "Executive Order Securing Our Borders," which authorized the construction of a border wall along the US-Mexico border and the expansion of the "Remain in Mexico" program. Trump also utilized executive action to suspend the refugee program and implement travel and immigration bans against certain countries.
The use of executive action allows the President to exert significant control over immigration policies and their enforcement, often shaping the direction of existing programs to align with their administration's priorities and goals.
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Frequently asked questions
The Immigration and Nationality Act (INA), which is the main law governing immigration in the United States, gives the president powers to suspend the entry of "any class of aliens" into the country.
The INA covers who is eligible to immigrate, annual immigration quotas, who is inadmissible, penalties for violating immigration laws, and more.
The executive branch, including the president, can propose and advocate for new or amended immigration legislation. They can issue executive orders, which are meant to guide administrative agencies on how to enforce the law.
No, the president cannot change immigration laws or write new laws. Only Congress has the power to change or write immigration laws.
