Keith Mack
In the United States, Congress has long been recognized as having plenary power over immigration, giving it almost complete authority to decide which foreign nationals may enter or remain in the country. The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has been considered a potential grant of power to Congress. The Supreme Court has also cited the federal government's complete power over international relations, including immigration matters. While the executive branch, including the president, can propose and push for new or amended immigration legislation, they cannot change existing law or write new laws. The function of executive agencies is to enforce the legislation passed by Congress, and they have the power to make specific decisions on certain immigration matters.
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What You'll Learn
Congress has the power to make immigration laws
In the United States, Congress has the power to make immigration laws. The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has been considered a potential grant of power to Congress. The Supreme Court has also cited the foreign commerce power, the power to declare war, and the power to establish a uniform rule of naturalization as sources of congressional immigration authority.
Congress's power over immigration includes the ability to make laws concerning aliens that may not be applied to citizens. For example, Congress can render communists ineligible for visas, as suggested in Mandel, 408 U.S. 767 (1972). Additionally, Congress's immigration laws are administered and enforced by various agencies within the executive branch, which pass rules and regulations to implement them. These agencies include the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement (ICE).
While Congress has the primary power to make immigration laws, the executive branch, including the president, can propose and push for new or amended immigration legislation through executive orders. These orders provide instructions to administrative agencies on how to enforce existing laws but cannot change or create new laws. An example is the Deferred Action for Childhood Arrivals (DACA) program, created by President Obama, which allowed certain individuals who came to the U.S. as children to apply for work authorization and protection from deportation.
State and local laws affecting immigration are generally struck down by U.S. courts as immigration is considered an area governed by federal law. However, states do have some laws that control immigration within their borders, and the Supreme Court has upheld certain state laws that incidentally affect foreign nationals, such as state probate laws. The Supreme Court has also allowed states to determine the immigration status of individuals arrested or detained when there is a reasonable suspicion that they are unlawfully present in the country.
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The executive branch can propose new immigration laws
The executive branch, including the president, can propose and push for new or amended immigration legislation. In recent years, US presidents have become frustrated with Congress's inability to pass immigration legislation. As a result, they have frequently issued "executive orders" to address immigration issues. These executive orders are directives that guide administrative agencies on how to enforce immigration laws and are followed in the same way that laws are. However, it is important to note that executive orders are not intended to alter or create new laws.
The role of the executive branch in immigration law is primarily focused on enforcement and administration. Executive agencies are responsible for implementing and carrying out the immigration laws passed by Congress. They have the authority to create detailed rules and regulations that expand upon and interpret Congress's laws, ensuring they are followed and enforced. These agencies play a crucial role in deciding who falls within each class of non-citizens defined by Congress for denial of admission or removal. While the executive branch has no inherent power over immigration, it operates within the scope of authority granted by statute. Any executive decisions that exceed this authority are considered illegal and can be overturned by the courts.
The executive branch's authority in immigration matters is derived from congressional delegations of power. The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, recognising their exclusive role in formulating policies related to the entry and rights of non-citizens. However, the executive branch's enforcement of these policies must respect procedural safeguards and due process. While Congress has the power to change immigration laws, the executive branch's role in proposing and influencing immigration legislation is significant.
The executive branch's ability to propose new immigration laws is influenced by various factors. One factor is the public commentary process, where agencies draft regulations after considering public input. Additionally, the executive branch's proposals must align with congressional laws and cannot be inconsistent with them. Furthermore, the courts play a crucial role in interpreting and upholding the law, and they may restrict the executive branch's proposals if they exceed the scope of congressional authorisation.
In summary, while the executive branch can propose new immigration laws, its power is derived from congressional authority and shaped by judicial oversight. The dynamic between these branches of government influences the direction of immigration policy, with the executive branch playing a pivotal role in proposing and enforcing immigration legislation.
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The executive branch enforces immigration laws
The executive branch's enforcement of immigration laws extends beyond these agencies. The country's system of immigration courts falls under the purview of the executive branch's Department of Justice (DOJ). The DOJ's Executive Office for Immigration Review makes critical decisions on who is permitted to remain in the country and who should be removed. Notably, immigration judges are technically employees of the Department of Justice, highlighting the executive branch's direct involvement in immigration law adjudication.
While the executive branch plays a significant role in enforcing immigration laws, it is essential to recognize that Congress has plenary power over immigration. Congress decides which classes of non-citizens will be denied admission or removed, and the executive branch then interprets and enforces these decisions. The executive branch's agencies have a degree of discretion in creating procedures to implement and enforce immigration laws, but they must stay within the boundaries set by Congress. Any unauthorized decisions by the executive branch can be deemed illegal and overturned by the courts.
In recent years, there has been a dynamic between the executive branch and Congress regarding immigration policy. U.S. presidents have turned to "executive orders" to propose and push for new or amended immigration legislation when faced with congressional inaction. While executive orders provide direction to administrative agencies on enforcing the law, they are not intended to change or create new laws. An example is the Deferred Action for Childhood Arrivals (DACA) program, established by President Obama, which utilized existing law to provide work authorization and deportation protection for certain undocumented immigrants. However, the nature of executive orders also means that subsequent presidents can issue new orders to reverse previous ones, as seen in President Trump's attempts to undo DACA.
At the state level, while states do not have the authority to pass laws that directly contradict federal immigration statutes, they can pass laws and ordinances that impact immigrant communities. For instance, states can determine residency requirements for in-state tuition and state financial aid, set licensing regulations for certain professions, and decide who can access state-funded social programs. States like Texas have attempted to exert a more prominent role in immigration enforcement, but their efforts must remain within the boundaries of federal jurisdiction. Overall, the executive branch, through its agencies and the judicial system, plays a critical role in enforcing immigration laws, but it operates within the framework established by Congress and the broader federal government.
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The Supreme Court has described the power as flowing from the Constitution
The US Constitution establishes a federal government, and the Supreme Court has long described the power to create immigration laws as flowing from this establishment. This power has been upheld in various cases, including Ping v. United States in 1889, which recognised the power of exclusion of foreigners as an incident of sovereignty belonging to the federal government.
The Supreme Court has also cited other specific constitutional provisions to support the inference that the federal government has complete power over international relations, including immigration matters. For example, in Nishimura Ekiu v. United States (1892), the Court cited the power to establish a uniform rule of naturalisation, the power to declare war, and the power to make all laws necessary and proper.
The Migration and Importation Clause in Article I, § 9, Clause 1, of the Constitution has also been considered a potential grant of power to Congress over immigration. While the federal government has the ultimate authority over immigration, state laws can still affect immigration and non-citizens. For instance, in De Canas v. Bica (1976), the Supreme Court upheld a California statute prohibiting employers from knowingly employing non-citizens who are not entitled to lawful residence in the US.
The Court has noted that not every state law dealing with aliens is a regulation of immigration and that state laws are valid unless they conflict with federal law. However, state laws that attempt to implement foreign policy or interfere with federal immigration law have been struck down by the Supreme Court. For example, in Clark v. Allen (1947), the Court considered a state statute that conditioned a nonresident alien's right to inherit property on reciprocal rights for US citizens in the non-citizen's nation. The Court held that such laws are valid unless they conflict with federal law or statute.
In summary, while the Supreme Court has described the power to create immigration laws as flowing from the Constitution's establishment of a federal government, it has also recognised that state laws can have an impact on immigration matters as long as they do not conflict with federal law or infringe on areas of exclusive federal control, such as foreign policy.
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State laws affecting immigration are usually struck down
In the US, the power to create immigration laws is held by Congress. Various agencies of the executive branch of the US government are responsible for administering these laws by passing rules and regulations and actively carrying them out. The regulations they draft are usually more detailed versions of Congress's laws and must be followed like laws, but they can't be inconsistent with them.
However, some state laws touching on immigration have been found to be acceptable. For instance, in De Canas v. Bica (Sup.Ct.1976), the Supreme Court upheld a California statute prohibiting an employer from knowingly employing a non-citizen who is not entitled to lawful residence in the US if such employment would adversely affect lawful resident workers. The Court noted that the Immigration and Nationality Act (INA) did not preempt the California statute, and that the nature of the subject matter does not compel a conclusion of exclusive federal control.
In addition, the Supreme 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 on some other legitimate basis if "reasonable suspicion exists that the person is an alien and is unlawfully present in the United States". The Court noted that federal law doesn't prevent state police from communicating with federal immigration authorities in these situations, so unless the officers abuse their authority by prolonging detention to check immigration status, the law can continue.
Despite these instances, there is a general trend of states passing punitive immigration laws that disproportionately harm foreign-born residents. For example, Arizona and a few other states passed expansive “show me your papers” anti-sanctuary legislation, essentially forcing state and local law enforcement to act as an arm of federal immigration enforcement. While the Supreme Court and other federal courts have struck down many of the unconstitutional aspects of these laws, other insidious provisions have remained. More recent waves of anti-sanctuary legislation have added new harmful measures restricting localities from passing sanctuary policies and increasing collusion between state and local law enforcement and ICE.
Trump's efforts to force state cooperation on immigration have raised questions about the constitutional limits of federal authority. While voluntary cooperation between the federal government and state law enforcement is well-established, efforts by the Trump administration to compel state law enforcement to enforce federal immigration law are contentious. This issue revolves around the anti-commandeering doctrine, a principle established by the Supreme Court that prohibits the federal government from compelling states to administer federal programs.
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Frequently asked questions
Congress has the power to create immigration laws. The Supreme Court has described this power as flowing from the Constitution’s establishment of a federal government. The function of executive agencies in the field of immigration is to enforce the legislation passed by Congress.
The executive branch, including the president, can propose and push for new or amended immigration legislation. The executive branch can issue "executive orders" to tell administrative agencies how to enforce the law. These orders are followed like laws, but they cannot change existing laws or create new ones.
The federal courts can make law by giving their opinion on what Congress meant when it passed a law. They also have the power to change rules, regulations, and policies of administrative agencies when they are challenged by an individual.
