Who Has the Power to Change U.S. Immigration Law?

Learn about the role of Congress, the courts, the U.S president, and the states in passing or enforcing U.S. immigration law.

By , J.D. · UC Davis School of Law

To understand who has the power to change U.S. immigration law, you must first understand how U.S. immigration law gets made. Immigration is not mentioned in the U.S. Constitution or any of its amendments, which are the supreme law of the land. However, the U.S. Supreme Court ruled early on that immigration regulation was an exclusive responsibility of the federal government.

From time to time state and local (city or county) governments attempt to make laws that affect immigration, but they're often unsuccessful.

There are three branches of federal government—the executive (headed by the president), the legislative (Congress, composed of the House of Representatives and the Senate), and the judiciary (the Supreme Court, circuit courts, and federal district courts around the United States). Each of them has the power to make and change rules with regard to immigrating to the United States.

Role of U.S. Congress in Drafting U.S. Immigration Law

Federal laws are written by Congress and become effective when signed by the U.S. president or when a presidential veto is overridden by both the House of Representative and the Senate.

The Immigration and Nationality Act, which is the main law governing immigration in the United States, came from Congress. It covers all the basics, such as who is eligible to immigrate, how many can do so each year, who is inadmissible and cannot be allowed into the United States, what the penalties are for violating U.S. immigration laws, and so on.

What's more, it is Congress that is empowered to change this law or to write any other laws affecting immigration.

Role of Executive Branch—Federal Administrative Agencies With Regard to Immigration Law

The agencies of the executive branch of government are responsible for administering Congress's immigration laws by passing rules and regulations and actively carrying them out.

The regulations they draft (after hearing public commentary) are usually more expansive, detailed versions and interpretations of Congress's laws. They must be followed like law, but they can't be inconsistent with Congress's laws.

The federal administrative agencies that issue rules and regulations that affect immigration the most are the Department of Homeland Security (which includes U.S. Citizenship and Immigration Services or USCIS as well as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)), the Department of State, the Department of Justice, the Department of Labor, and the Department of Health and Human Services.

A change in the way an agency handles a case or interprets a law or regulation can be very important. Sometimes those policies are put in writing when the agency issues a policy memorandum. But sometimes, these agencies implement internal policies quietly, without telling anyone. Then it becomes the role of immigration attorneys and advocates to get them to explain what's going on or stop doing it.

Role of the Executive Branch—U.S. President

In recent years, U.S. presidents have become frustrated with Congress's inability to pass immigration legislation, so they've regularly tried to alter enforcement of the law by issuing "executive orders." Executive orders tell the administrative agencies what to do, and they're followed like a law.

An example of a "law" that was made by executive order was the Deferred Action of Childhood Arrivals (DACA) program, created by President Obama to allow certain persons who came to the U.S. as children to apply for work authorization and protection from deportation.

Executive orders are not a great way to permanently change immigration law, because the next president can issue an executive order reversing them, like President Trump largely did with DACA. President Trump also issued numerous executive orders concerning immigration

Many of these were later halted by the courts or reversed by President Biden. And not surprisingly, President Biden has issued immigration-related executive orders, starting with a broad one in 2021.

Role of Federal Courts in Interpreting U.S. Immigration Law

No matter how well Congress writes a law, it can't cover or anticipate every possible situation that might come up. The federal courts end up making a lot of law just by giving their opinion on what Congress meant when it passed a law.

Therefore, a single individual might be able to change U.S. immigration law just by challenging an existing law, or the government's interpretation of it, in court. The same is true with regard to rules, regulations, and policies of administrative agencies—these can be challenged by an individual and changed by the court.

One interesting feature of the U.S. legal system is that many challenges to immigration laws, rules, regulations, and policies are decided by the administrative agencies themselves, rather than by judges who are part of the judicial branch of government. Congress has said that in certain instances, there is no way to appeal the final decision of an administrative agency. In other instances, judges are bound to follow the agency's interpretation of the law even if they disagree. All of this restricts a federal judge's ability to change the law in certain areas.

Role of U.S. States in Managing Immigration Matters

State and local laws affecting immigration usually are struck down by U.S. courts, because they can't interfere in an area like immigration that is governed by the federal government.

For example, when the state of 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" in Arizona, the U.S. Supreme Court said Arizona couldn't do that because federal law already covered unauthorized employment of noncitizens.

Likewise, when a city in Pennsylvania passed an ordinance prohibiting employment of unauthorized noncitizens and precluding them from renting housing within the city, a federal appeals court struck down the ordinance because it interfered with federal immigration law.

Some state laws touching on immigration may be okay, however. The U.S. 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." (See Arizona v. United States, 2012.) The law also provides that anyone arrested "shall have the person's immigration status determined" before being released. The Court noted that federal law doesn't prevent state police from communicating with federal immigration authorities in these situations, so unless the officers start abusing their authority by prolonging detention to check immigration status, the law can continue.

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