Anaya Nolan
Immigration laws are governed by the federal government, and in the US, Congress has long been recognised as having plenary power over immigration. This means that Congress has almost complete authority to decide whether foreign nationals may enter or remain in the country. The Supreme Court has historically taken a hands-off approach to immigration law, but it has the power to strike down state and local laws that interfere with federal immigration law. The executive branch, including the president, can also propose and push for new or amended immigration legislation through executive orders, which are meant to guide administrative agencies on how to enforce the law.
| Characteristics | Values |
|---|---|
| Immigration laws made by | Congress |
| Powers | Making laws concerning aliens |
| Supreme Court | Has described the power as flowing from the Constitution's establishment of a federal government |
| Has taken a "hands-off" approach to immigration law | |
| Executive branch | Includes the president |
| Can propose and push for new or amended immigration legislation | |
| Can issue "executive orders" to tell administrative agencies how to enforce the law | |
| Executive orders can be reversed by the next president | |
| State and local laws | Cannot interfere in immigration |
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What You'll Learn
The role of Congress
Immigration laws in the United States are governed by the federal government. The U.S. Congress has long-standing Supreme Court precedent recognition as having plenary power over immigration. This gives Congress almost complete authority over whether foreign nationals (aliens, as per governing statutes and case law) may enter or remain in the United States.
Congress can make laws concerning aliens that would be unconstitutional if applied to citizens. This power has been interpreted by the Supreme Court to apply with the most force to the admission and exclusion of nonresident aliens abroad seeking to enter the United States.
Congress's immigration powers are also derived from the Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution. This clause barred Congress from outlawing the slave trade before 1808. The Supreme Court has described Congress's immigration powers as flowing from the Constitution's establishment of a federal government.
In addition to the Migration and Importation Clause, early cases cite other specific constitutional provisions to support the inference that Congress has the power to regulate immigration and naturalization. These include the foreign commerce power, the power to establish a uniform rule of naturalization, the power to declare war, and the power to make all laws necessary and proper.
While Congress has significant power over immigration, it is not the only branch of government involved in immigration policy. The executive branch, including the president, can propose and push for new or amended immigration legislation through executive orders. These orders direct administrative agencies on how to enforce the law, but they are not supposed to create or change existing laws.
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The role of the courts
The Supreme Court has long recognised Congress's plenary power over immigration, giving it almost complete authority over the admission and exclusion of foreign nationals. The Court has upheld the power of exclusion of foreigners as an incident of sovereignty belonging to the US government. For example, in the case of Ping v. United States (1889), the Supreme Court upheld a law prohibiting the return of Chinese labourers to the US, recognising the federal government's power to exclude foreigners.
Despite the Supreme Court's deference to Congress on immigration matters, it has played a role in defining the limits of congressional power. For instance, in the case of Nishimura Ekiu v. United States (1892), the Court cited specific constitutional provisions to support the inference that the federal government possesses power over immigration matters. The Court has also been willing to review cases relating to the exclusion of non-citizens, although it has given extreme deference to legislative determinations on this issue.
State and local laws affecting immigration are often struck down by the courts as they cannot interfere in an area governed by federal law. For example, the Supreme Court struck down an Arizona law that made it a crime for an unauthorised alien to apply for or perform work, as federal law already covered the unauthorised employment of non-citizens.
The courts also play a role in reviewing executive actions and orders related to immigration. For instance, President Obama's Deferred Action for Childhood Arrivals (DACA) program was blocked by some judges, and several of President Trump's executive orders on immigration are currently being litigated.
In summary, while the courts have generally deferred to Congress and the federal government on immigration matters, they play a crucial role in interpreting and enforcing immigration laws, ensuring their constitutionality, and safeguarding individuals' rights.
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The role of the president
One of the most significant tools the president has is the ability to issue executive orders. Executive orders are directives issued by the president to guide administrative agencies on how to enforce existing laws. While executive orders are not supposed to create new laws or change existing ones, they can significantly shape how immigration laws are implemented and enforced. For example, President Obama's Deferred Action for Childhood Arrivals (DACA) program used an executive order to allow certain undocumented immigrants who entered the US as children to apply for work authorization and protection from deportation.
The president also has the power to make treaties, appoint ambassadors, and select public ministers and consuls. This power, granted by the US Constitution, can indirectly impact immigration by shaping the country's international relations and agreements with other nations.
Additionally, the president can propose and push for new immigration legislation or amendments to existing laws. They can advocate for their preferred policies and work with Congress to try to get them enacted. However, if Congress fails to act or passes legislation contrary to the president's wishes, the president's ability to directly shape immigration laws is limited.
It's worth noting that the Supreme Court has historically taken a "hands-off" approach to immigration law, allowing Congress and the executive branch significant leeway in this area. However, the Court has stepped in on occasion to strike down state and local laws that interfere with federal immigration authority or violate constitutional rights.
In summary, while the president doesn't have the unilateral power to make or change immigration laws, they can influence immigration policy through executive orders, treaty-making powers, and legislative advocacy. Their role often involves navigating the complex interplay between the executive, legislative, and judicial branches of government to shape the direction of immigration policy in the United States.
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Federal government power
The federal government of the United States has extensive powers over immigration law. The Supreme Court has described the power as flowing from the Constitution's establishment of a federal government. This includes the Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution, which has been interpreted as granting power to Congress.
Congress has been recognised by the Supreme Court as having plenary power over immigration, giving it almost complete authority over the admission and exclusion of foreign nationals (aliens) to the United States. This power has been exercised in various ways, including the prohibition of the return of certain foreign labourers to the United States and the exclusion of Chinese labourers in the late 19th century.
The federal government's power over immigration law also stems from its authority over international relations. Early Supreme Court cases such as Nishimura Ekiu v. United States (1892) and Fong Yue Ting v. United States (1893) cited the federal government's power over foreign commerce, the power to establish uniform rules of naturalisation, and the power to declare war as sources of immigration law authority.
The executive branch, including the President, can propose and push for new or amended immigration legislation through executive orders. While these orders are meant to guide administrative agencies in enforcing the law, they are not intended to create or change existing laws. The President's power in immigration matters is further demonstrated in cases such as Mezei, where the Supreme Court allowed the indefinite detention of excludable non-citizens if their country of origin refused to accept them.
State and local laws affecting immigration are often struck down by federal courts as they cannot interfere in an area governed by the federal government. For example, the Supreme Court invalidated an Arizona law that criminalised unauthorised aliens seeking employment, as federal law already covered this area.
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State and local laws
Immigration is governed by the federal government, and state and local laws affecting immigration are often struck down by U.S. courts. This is because state and local laws cannot interfere in an area governed by the federal government.
For example, when Arizona enacted a law that made it a crime for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor", the U.S. Supreme Court said that this was not allowed as federal law already covered the unauthorized employment of noncitizens. Similarly, when a city in Pennsylvania passed an ordinance prohibiting the employment of unauthorized noncitizens and preventing them from renting housing within the city, a federal appeals court struck down the ordinance because it interfered with federal immigration law.
However, some state laws touching on immigration have been deemed acceptable. For instance, the U.S. Supreme Court upheld an Arizona law that requires state officers to make a "reasonable attempt" to determine the immigration status of people they contact during investigations.
While Congress has long been recognized as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the United States, the federal courts also play a significant role in shaping immigration law. This is because the courts interpret and give their opinion on the laws passed by Congress, and they decide on challenges to immigration laws, rules, regulations, and policies.
The Supreme Court has historically taken a "hands-off" approach to immigration law, but it has not abdicated all responsibility. The Court has reserved a narrow ground for review, and its decisions in this area can provide hints of a possible future trend of limitation on Congress's plenary power.
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Frequently asked questions
The U.S. Congress has the power to make immigration laws. The Supreme Court has described this power as flowing from the Constitution's establishment of a federal government.
State and local laws affecting immigration are usually struck down by U.S. courts because immigration is governed by the federal government.
The President can propose and push for new or amended immigration legislation through executive orders. However, executive orders are not supposed to change existing laws or create new ones.
The Supreme Court has historically taken a "hands-off" approach to immigration law, but it still plays a role in interpreting and enforcing immigration laws and policies.
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