Cecily Zamora
The US Constitution gives the federal government the power to regulate immigration, and the legislative branch, or Congress, is in charge of making immigration laws. Congress has passed several provisions allowing state and local agencies to assist in enforcing immigration laws. The executive branch, which includes the President, can propose and push for new or amended immigration legislation, but they cannot change existing laws. The judicial branch, headed by the Supreme Court, hears cases involving Constitutional issues or disputes among lower courts. The Supreme Court has upheld federal statutes regulating immigration and precluded states from passing legislation that impinges on federal immigration dominion.
| Characteristics | Values |
|---|---|
| Branch of government that can pass immigration laws | Legislative Branch (Congress) |
| Who is included in the Legislative Branch? | The House of Representatives and the Senate |
| Who enforces immigration laws? | The Executive Branch |
| Who heads the Executive Branch? | The President |
| Which court hears cases involving Constitutional issues or disputes among lower courts? | The Supreme Court |
| Which court does not fall under the Judicial Branch? | Immigration courts |
| Under which branch do immigration courts fall? | Executive Branch |
| Which branch of the federal government can regulate immigration? | Federal Judiciary |
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What You'll Learn
The role of the Legislative Branch (Congress)
The Legislative Branch, also known as Congress, is responsible for making laws in the United States, including laws relating to immigration. It includes the House of Representatives and the Senate. The House of Representatives' membership is determined by the population of the states, while the Senate is composed of two people for every state.
Congress has been entrusted with formulating policies concerning immigration, and its power in this area is deeply embedded in the legislative and judicial fabric of the US political system. This power includes the ability to make laws concerning non-citizens that may be unconstitutional if applied to citizens. For example, Congress can decide whether foreign nationals may enter or remain in the country. The Supreme Court has repeatedly upheld Congress's authority to make such rules, as seen in the case of Demore v. Kim (2003).
Congress's immigration powers are also connected to its authority to declare war and the Migration and Importation Clause, which prevented Congress from outlawing the slave trade before 1808. The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, allowing it to decide the terms and conditions under which non-citizens may enter and stay in the country.
In addition to law-making, Congress also has oversight over executive agencies responsible for enforcing immigration laws. Congress can pass provisions allowing state and local agencies to assist in enforcing these laws. For instance, in 1983, Congress reserved the power to veto decisions by the INS (now "cancel removal") regarding deportation procedures. However, the Supreme Court ruled in INS v. Chadha (1983) that such legislative veto provisions violated the requirement that all bills must pass through both the House and the Senate and be signed by the President.
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The Judicial Branch and Supreme Court
The Judicial Branch of the US government is headed by the Supreme Court, which has the power to interpret laws and assess their constitutionality. The Judicial Branch plays a crucial role in immigration matters, as it hears cases involving Constitutional issues, including those related to immigration laws and policies.
The Supreme Court has historically upheld the federal government's broad power to regulate immigration, including the admission, removal, and naturalization of non-citizens. This power is deeply rooted in the early history of the United States and has been affirmed by numerous Supreme Court decisions over time. For example, in the 1952 case of Harisiades v. Shaughnessy, the Court recognised the federal government's sovereign power to regulate immigration and the inherent connection between immigration policies and foreign relations.
The Judicial Branch also serves as a check on the power of the Executive and Legislative Branches in immigration matters. For instance, in INS v. Chadha (1983), the Supreme Court ruled that legislative veto provisions concerning deportation procedures violated the constitutional requirement that all bills must be passed by both houses of Congress and signed by the President. This decision demonstrated the Judicial Branch's role in ensuring compliance with constitutional procedures and safeguarding the separation of powers.
Additionally, the Supreme Court has intervened in cases where executive actions or orders on immigration have been challenged. For example, in 2020, the Supreme Court overruled President Trump's memorandum rescinding DACA (Deferred Action for Childhood Arrivals), finding that it violated the Administrative Procedures Act (APA) by not providing a sufficient rationale for the rescission.
While the Judicial Branch has largely upheld the federal government's authority over immigration, there have been instances where lower courts have played a role in interpreting and enforcing immigration laws. For example, in Gonzales v. City of Peoria (1983), a lower court upheld local regulation related to the enforcement of criminal provisions of federal immigration law. Nonetheless, the Supreme Court retains the ultimate authority to review and decide on matters pertaining to immigration, ensuring consistency and adherence to constitutional principles across the nation.
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The Executive Branch and the President
The Executive Branch of the US government consists of the President and Vice President, as well as the executive agencies that are created to administer the laws enacted by the Legislative Branch. The President's role is to enforce federal laws, serve as commander-in-chief, and appoint judges and other officials.
The President has the power to issue executive orders, memoranda, and proclamations, which are directives to the Executive Branch. These executive orders can have a significant impact on immigration policy. For example, during World War II, President Roosevelt issued an executive order that led to US citizens of Japanese descent being sent to internment camps. More recently, President Obama created the Deferred Action for Childhood Arrivals (DACA) policy through an executive order in 2012. This protected certain undocumented immigrants who entered the US as minors from deportation and provided them with work permits.
President Trump also used executive orders to shape immigration policy, issuing over a dozen orders to restrict immigration. One of these was the "Travel Ban," which sought to ban people from several Muslim-majority countries from entering the US. While a federal district court initially blocked this order, the Supreme Court allowed it to remain in effect in 2018 while legal challenges were ongoing.
While the Executive Branch can influence immigration policy through enforcement and executive orders, the power to formulate immigration policies and make laws concerning immigration is entrusted exclusively to Congress. The Executive Branch must respect procedural safeguards and due process when enforcing these policies.
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State and local laws
While immigration law is federal law, administered by federal agencies, state laws and local law enforcement agencies play a significant role in immigration enforcement. The Supreme Court has upheld federal statutes regulating immigration, but decisions also preclude states from passing legislation that directly impinges on this area of federal authority.
However, states have some flexibility in immigration enforcement. For example, in De Canas, the Supreme Court held that states may fill gaps in federal immigration regulations concerning non-citizens, provided that state regulations do not conflict with federal policy. In John Doe No. 1 v. Georgia Dep't of Pub. Safety (2001), the court upheld Georgia's law restricting driver's licenses to "illegal aliens" because it mirrored federal objectives and served a legitimate state goal.
Lower courts have also upheld state and local regulations in certain areas, such as enforcing the criminal provisions of federal immigration law. In Gonzales v. City of Peoria (1983), the Ninth Circuit Court of Appeals ruled in favour of state and local involvement in immigration enforcement. Furthermore, in 1996, Congress passed provisions explicitly allowing state and local agencies to assist in enforcing immigration laws.
Despite this, there is no federal legal obligation for state and local jurisdictions to use their resources for immigration enforcement. However, historically, police and sheriff's departments have often voluntarily assisted ICE, even without considering the legality or consequences of their actions. This has resulted in racial discrimination, undermined the rule of law, and stripped communities of a sense of safety.
Some states have aggressively expanded their role in immigration enforcement with their own laws. For example, Texas has converted substantial portions of its criminal legal system to focus primarily on immigration enforcement issues. Additionally, Arizona and a few other states passed "show me your papers" anti-sanctuary legislation, forcing state and local law enforcement to act as an arm of federal immigration enforcement.
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Federal government's exclusive power
The federal government's exclusive power to regulate immigration is rooted in national sovereignty and federalism. Under a federalist system, the federal government enacts laws that apply across all jurisdictions in the United States. A uniform immigration law ensures uniformity across all fifty states, contributing to national identity, definition, and preservation.
The Supreme Court has consistently upheld the federal government's plenary power to regulate immigration, naturalization, and related foreign policy. This power is derived from the Constitution's establishment of a federal government and has been recognised as a "fundamental sovereign attribute". The Migration and Importation Clause, which barred Congress from outlawing the slave trade before 1808, is also cited as a source of congressional immigration power.
While the Legislative Branch, including the House of Representatives and the Senate, makes the laws, the Executive Branch enforces them. The formulation of immigration policies is entrusted exclusively to Congress, as affirmed in Galvan v. Press, and is deeply embedded in the legislative and judicial framework of the nation. The Executive Branch, in enforcing these policies, must respect procedural safeguards and due process.
The federal government's power over immigration includes regulating the admission, removal, and naturalization of non-citizens. The Supreme Court has upheld laws excluding aliens from entry based on ethnicity, gender, legitimacy, and political belief. However, the power has proven less absolute when directed at aliens already physically present in the country. While states may enforce federal immigration laws, they must not directly interfere with immigration or foreign policy.
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Frequently asked questions
The Legislative Branch, or Congress, has the power to pass immigration laws.
The Executive Branch, led by the President, executes and enforces immigration laws. The Department of Justice and the Department of Homeland Security are responsible for carrying out immigration law.
No, state laws affecting immigration are usually struck down by federal courts as immigration is governed by federal law. However, states can pass laws impacting immigrant communities without interfering with federal jurisdiction.
The federal courts interpret immigration laws passed by Congress and hear cases challenging existing immigration laws. The Supreme Court has upheld federal statutes regulating immigration and precluded states from passing legislation that impinges on federal immigration law.
The President cannot change existing immigration laws but can propose and push for new or amended legislation through executive orders. These orders direct administrative agencies on how to enforce the law and are followed like laws.
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