Gavin Howe
In the United States, immigration laws are governed by the federal government, and Congress is empowered to change or write laws affecting immigration. The Immigration and Nationality Act (INA), enacted in 1952, is the primary law that governs immigration in the country. It covers eligibility, annual quotas, inadmissibility, and penalties for violating immigration laws. Congress can amend the INA, add new sections, or pass new immigration laws that do not change the INA. The U.S. President can also issue executive orders that impact immigration policies, but these can be reversed by subsequent presidents. Federal courts also play a role in interpreting and shaping immigration law through their rulings on challenges to existing laws or administrative agency rules and regulations. While state and local laws affecting immigration are generally struck down by federal courts, some state laws touching on immigration have been allowed.
| Characteristics | Values |
|---|---|
| Federal laws | Immigration and Nationality Act |
| Public laws | |
| Immigration Bills | |
| Who can write legislation | Congress |
| U.S. President | |
| Federal Courts | |
| Executive branch of the U.S. government |
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What You'll Learn
Congress can write and change immigration laws
Congress has the power to change immigration law or write any other laws affecting immigration. The federal Immigration and Nationality Act (INA), which is the main law governing immigration in the United States, was enacted by Congress. It covers who is eligible to immigrate, how many can do so each year, who is inadmissible and cannot be allowed into the country, and what the penalties are for violating U.S. immigration laws.
Congress can make laws concerning aliens that would be unconstitutional if applied to citizens. The Supreme Court has interpreted this power to apply most strongly to the admission and exclusion of nonresident aliens abroad seeking to enter the United States. Longstanding Supreme Court precedent recognizes Congress as having "plenary" power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the country.
When Congress enacts public laws affecting immigration and nationality, it may amend INA sections, add new sections to the INA, or pass immigration laws that do not change the INA. These changes are then reflected in the larger body of public laws, codified by subject matter in the U.S. Code. Congress has also enacted laws governing how executive agencies may regulate private behavior, track personal information, and conduct business.
Various agencies of the executive branch of the U.S. government are responsible for administering Congress's immigration laws by passing rules and regulations and actively carrying them out. These regulations are usually more detailed interpretations of Congress's laws and must be followed like laws, but they cannot be inconsistent with them. While the executive branch, including the president, can propose and push for new or amended immigration legislation, they cannot change existing laws or write new ones.
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The Immigration and Nationality Act (INA)
In the United States, Congress is the branch of the government that is empowered to write legislation and change immigration laws. The Immigration and Nationality Act (INA) was enacted by Congress in 1952. The INA is a federal law that reorganised the structure of immigration law and is contained within the United States Code (U.S.C.). Title 8 of the U.S. Code, which covers "Aliens and Nationality", includes the INA and most other immigration laws.
The INA governs immigration and citizenship in the United States. It consolidated various immigration laws into a single text, covering eligibility for immigration, annual immigrant quotas, inadmissibility, and penalties for violating immigration laws. The act also included provisions on drinking and substance use as a requirement for admission. For example, immigrants who were "habitual drunkards" or involved in drug trafficking were deemed inadmissible and ineligible for naturalisation.
The INA also addressed specific political concerns of the time, such as Cold War-era fears of communist infiltration. It deemed immigrants associated with communism or advocating for the overthrow of the United States as deportable. Additionally, the INA eliminated certain due-process safeguards for immigrants, which some senators criticised as exposing deportees to bureaucratic tyranny.
The INA has been amended numerous times since its enactment, reflecting the evolving nature of immigration law. These amendments can involve changes to specific sections or the addition of new sections to the INA. While Congress is responsible for writing immigration laws, federal courts also play a role in interpreting and applying these laws through their rulings on individual cases and challenges to existing laws.
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Presidential actions and executive orders
In the United States, the power to change immigration laws lies with Congress. The federal Immigration and Nationality Act (INA), which is the primary law governing immigration, was enacted by Congress. This act covers eligibility for immigration, annual immigration quotas, inadmissibility criteria, and penalties for violating immigration laws. While Congress has the authority to amend or create new sections of the INA, it also passes immigration laws that do not change the INA. These laws are codified in the U.S. Code, specifically in Title 8, which encompasses most immigration laws.
While the President of the United States does not have the power to change immigration laws, they can issue executive orders that direct agencies to enforce existing laws and interpret how these laws are implemented. For example, President Trump issued numerous executive orders during his first and second terms, impacting various aspects of immigration policy, such as enhanced vetting of visa applicants, border security, and asylum seekers' treatment. These orders often face legal challenges and can be reversed by subsequent presidents.
Executive departments and agencies play a crucial role in administering and enforcing immigration laws. They pass rules and regulations that interpret and expand upon the laws enacted by Congress. These regulations must align with congressional laws and are legally binding. However, they are subject to legal challenges, and individuals can seek changes through the courts.
The Department of Homeland Security (DHS) and the Department of Justice (DOJ) are key players in enforcing immigration laws. The DHS, through agencies like U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, is responsible for border security and immigration enforcement. The DOJ's Executive Office for Immigration Review (EOIR) handles immigration-related matters, and its Board of Immigration Appeals (BIA) issues decisions that guide immigration law.
In conclusion, while the President and executive branch agencies play significant roles in interpreting, enforcing, and implementing immigration laws, the power to change these laws through legislation rests solely with Congress.
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State and local laws
In the United States, immigration is governed by federal law, and state and local laws cannot interfere in this area. However, some state laws touching on immigration have been upheld by the U.S. Supreme Court. For example, in Arizona v. United States (2012), the Court let stand an Arizona law that requires state officers to make a "reasonable attempt ... to determine the immigration status" of any person they stop, detain, or arrest if there is a "reasonable suspicion" that the person is an illegal alien. The Court noted that federal law does not prevent state police from communicating with federal immigration authorities in these situations.
While state and local laws cannot directly change immigration laws, they can influence their enforcement. For example, the Secretary of Homeland Security is responsible for ensuring that state and local governments have the information necessary to fulfil law enforcement, citizenship, or immigration status verification requirements. Additionally, the Secretary of Homeland Security can enter into agreements with state and local law enforcement agencies to assist with protecting the country's borders.
It is important to note that challenges to immigration laws are often decided by administrative agencies rather than judges. Congress has stated that, in certain instances, there is no option to appeal the final decision of an administrative agency. This limits the ability of federal judges to interpret and change immigration laws. Overall, while state and local laws cannot directly change immigration laws, they can have an impact on their enforcement and application.
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Federal courts
In the US, Congress is the body that has the power to change immigration law or write new laws affecting immigration. The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, with executive authority mainly derived from congressional delegations of authority. The federal Immigration and Nationality Act, the main law governing immigration in the US, came from Congress.
For example, federal courts can strike down state and local laws that interfere with federal immigration law. In one case, the US Supreme Court struck down an Arizona law that made it a crime for an unauthorized immigrant to apply for or perform work, as federal law already covered the unauthorized employment of noncitizens. Federal courts can also hear challenges to the rules, regulations, and policies of administrative agencies, and their decisions can result in changes to the implementation and enforcement of immigration laws.
The US Department of Justice (DOJ) contains the Executive Office for Immigration Review (EOIR), which oversees the immigration court structure. There have been criticisms of the system, with some arguing that the immigration courts are not truly independent and merely "rubber-stamp" DHS actions. This has led to calls for the establishment of independent Article I immigration courts to improve the adjudication of immigration cases.
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Frequently asked questions
Congress is responsible for writing legislation to change immigration laws. The Immigration and Nationality Act (INA) is the main law governing immigration in the US, and it was passed by Congress.
The INA 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.
State and local laws that affect immigration are usually struck down by US federal courts, as immigration is governed by federal law. However, some state laws touching on immigration have been deemed acceptable.
