This series is designed to teach you about our legal structure in the context of current political events. Go deeper, past news articles, with this infographic.
This map's topic is Immigration Law.
How The Government Can Make Immigration Policy:
The Constitution gives Congress the general power to legislate (Article I). It specifically mentions that this power includes creating laws on “naturalization,” how noncitizens can become citizens (Section 8, clause 4). See Legislative column below for some of the laws Congress has made relating to immigration.
The Constitution makes general grants of power to the President (the “executive power” (Article II, Section 1) and the power of “Commander in Chief of the Army and Navy” (Article II, Section 2)), which may be cited by a President in arguing for the power to create immigration policy.
There are, however, limits on the power of Congress and the President to make immigration laws or policies. The Constitution protects certain fundamental rights of people (the Bill of Rights), and these rights are not limited to people who are citizens of the U.S.
Limits on Government Policy:
The Constitution’s First Amendment relating to free speech/religion prevents the government from incorporating religion into its policies (separation of church and state) and from choosing one religion over another. This is called the “Establishment Clause.” See Washington v. Trump and Hawaii, et al. v. Trump in judicial column.
The 4th Amendment, which protects against unreasonable search and seizure, may limit the way in which immigrants are stopped and detained. Some argue that current Immigration and Customs Enforcement (ICE) procedures violate the 4th Amendment because the procedures fail to have a neutral judge decide whether to issue a warrant, fail to give the proper notice to immigrants of their rights, and fail to provide immigrants fair hearings. See Executive column below for information on the federal agency, Immigration and Customs Enforcement.
The 14th Amendment and the 5th Amendment also contain limits on government policy relating to immigrants because they prohibit the government from interfering with all persons' (including immigrants') fundamental rights of Equal Protection and Due Process. Equal Protection prevents the government (14th Amendment prevents state governments and 5th Amendment prevents federal government) from discriminating on the basis of race, ethnicity, religion, national origin, and sex. The only way a government can defend against an action that seems discriminatory is if it has a "compelling interest" and the law is "narrowly tailored" to meet that compelling interest. The courts in Darweesh v. Trump, Washington v. Trump and Hawaii v. Trump would make this analysis (see Judicial column) They would consider whether the President’s foreign affairs interests are “compelling” enough to justify exceptions to the Equal Protection and Due Process rights of immigrants, and whether the limitations are sufficiently “narrowly tailored” to solve the President’s foreign affairs concerns without infringing unnecessarily on rights.
Procedural Due Process, also in the 5th and 14th Amendments (depending on whether a state government or the federal government is acting), is about fairness: the process by which someone's life, liberty or property rights may be taken away. Due process includes, for example, the right to a fair hearing and proper notice requirements. The government cannot arbitrarily take away an immigrant's rights (for example, the right to be granted a visa). It must use proper legal process (for example, provide notice and an opportunity to be heard).
Substantive Due Process in the 5th and 14th Amendments is about what types of rights are included in “life, liberty and property” rights. In the immigration context, for example, one might argue the right to travel freely is a fundamental liberty right. The government cannot arbitrarily take these fundamental rights away.
Two other parts of the Constitution that relate to the government’s power to create immigration policy are the Constitution’s Tenth Amendment (that the federal government cannot “commandeer” (boss around) the state governments) and the Spending Clause of Article I, Section 8 (that Congress controls the federal budget). See San Francisco, et al. v. Trump in the Judicial column for a discussion.
See the section below for immigration-related federal laws, executive actions, and court cases.
The following federal laws (a nonexhaustive list) relate specifically to immigration. Congress has the power to repeal or to change any of them. If two or more of the laws come into conflict, the courts must decide which one applies best to the specific case. See principles of statutory construction.
The Immigration and Nationality Act of 1952 governs immigration to and citizenship in the United States. It was signed in the context of the Cold War and in the scare of the spread of Communism. The Act established a preference system which determined which ethnic groups were desirable immigrants and placed importance on labor qualifications. Section 212(f) gives the President the power to prohibit entry of any class of aliens when the President finds that entry "would be detrimental to the interests of the United States.” It also says the President may, in such case impose, “any restrictions he may deem to be appropriate" on the entry of aliens.”
The Immigration and Nationality Act of 1965 revised several aspects of the 1952 law. Passed during the civil rights movement, it outlaws discrimination against people seeking immigration status (eliminated national origin, race, and ancestry as bases for immigration). Among its other provisions, it gave priority to relatives of U.S. citizens and legal permanent residents and to professionals and other individuals with specialized skills, and it allowed U.S. organizations to employ foreign workers either temporarily or permanently to fulfill certain types of job requirements (on visas such as the H-1B Visa).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 placed rules restricting the rights of people who stayed in the U.S. unlawfully for a period of time. Among its other provisions, it also made people eligible for deportation based on minor criminal offenses (like shoplifting).
The following statutes, while not specifically immigration statutes, became relevant in the judicial actions challenging Trump’s Jan. - Mar. 2017 executive actions:
The Religious Freedom Restoration Act (prohibits the federal government from interfering with the exercise of religion) and the Administrative Procedure Act (sets limits on the power of executive agencies).
president and Executive agencies
The following examples of executive actions were chosen in the context of controversy over President Trump’s early anti-immigration actions (January - March 2017).
Executive Orders on Travel and Immigration Status:
President George W. Bush restricted immigration in 2001 just after the September 11, 2001 terrorist attacks. The action briefly suspended refugee admissions while reviewing security procedures relating to the refugee program. See Congressional Research Service report, p. 2.
President Obama issued an executive order in 2011 placing a 6 month restriction on Iraqi refugee processing, after discovering a failed attack by two Iraqi men who had entered the country through the refugee program.
President Trump issued an executive order on January 27, 2017 placing a 90-day restriction on all travelers from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. It also suspended the refugee admissions program for 120 days and prohibited the acceptance of Syrian refugees indefinitely. It included a preference for persecuted religious minorities in the listed countries. This order was challenged as illegal in several courts. In one case, it received an unfavorable ruling by a federal Appeals Court (see Washington v. Trump in the Judicial column), which prompted his revised version of an order restricting immigration (see below).
President Trump’s revised executive order restricting immigration came on March 6, 2017. The order places a 90-day restriction on travelers from 6 of the 7 countries in the earlier order (now excludes Iraq): Syria, Iran, Sudan, Libya, Somalia and Yemen. The new order exempts permanent residents and current visa holders and removed the language of preference for persecuted religious minorities. The new order also changed the ban on Syrian refugees from indefinite to a 120-day freeze. This order has been challenged in several courts. See Judicial column.
Executive Order on Immigration Enforcement:
President Trump issued an executive order on January 25, 2017 threatening to cut federal funding to local governments that refuse to aid in federal immigration enforcement. Among the jurisdictions that could suffer from this order are those with “sanctuary policies,” cities and counties with policies that local officials should not seek immigration information from people and that refuse to turn over to the federal government people with questionable immigration status. See State section below and San Francisco, et al. v. Trump in Judicial column.
The main federal agency responsible for immigration enforcement is Immigration and Customs Enforcement (ICE). ICE is the “police power” for immigration. It makes rules that state more specifically how the laws in the Legislative column should be carried out. ICE cannot make rules or act in ways that conflict with the federal laws, and it cannot make rules or act in ways that conflict with the Constitution. ICE’s rules regarding immigration enforcement can be found here (or in the Federal Register, where all agencies post rules), but they are very confusing to figure out.
Several cases have been filed against President Trump’s immigration-related executive orders.
Challenges to Trump’s First (Jan. 27, 2017) Executive Order:
Darweesh v. Trump (2017) was filed in federal court (Eastern District of New York) by lawyers from the ACLU and other civil rights groups. The plaintiffs (two Iraqi U.S. visa holders) argued the executive order is illegal because it conflicts with their constitutional rights and with federal laws. The Constitutional rights argued to have been violated include Due Process and Equal Protection. The government must not discriminate against a person on the basis of country of origin, and the government cannot arbitrarily take away a person's liberty rights (see Constitution section above). The plaintiffs cited several other federal laws and regulations that they claim the order violates by seeking to return them to Iraq.
Washington v. Trump (2017) was filed in federal court (Western District of Washington) by the State of Washington and the State of Minnesota. The state plaintiffs argued that Trump’s order was unconstitutional on many of the same grounds as the plaintiffs in Darweesh v. Trump above. In this case, they also included the First Amendment’s Establishment Clause, arguing that the Trump order brings religious preference into governing. The plaintiffs argued the Immigration and Nationality Act also was violated because the act forbids discrimination in issuing visas on the basis of the person’s race, nationality, place of birth or place of residence. The Western District of Washington granted a preliminary win to the plaintiffs, ordering Trump to stop enforcing the order until the case could be fully heard. Trump’s team appealed this preliminary order, which then went to the 9th Circuit Court of Appeals, where the ruling was upheld. This ruling - although just a preliminary order stating that case had a good chance of winning (and stopping enforcement of the order) - is what most likely gave rise to the revised travel ban order.
Challenge to Trump’s Revised (Mar. 6, 2017) Executive Order:
The State of Hawaii, joined with a Muslim religious figure (Imam Ismail Elshikh, of the Muslim Association of Hawaii) brought the first suit against President Trump’s revised (March 6, 2017) immigration order (State of Hawaii, et al. v. Trump). The plaintiffs argue the order is unconstitutional under the First Amendment (separation of church and state and preference among religions) and the Fifth Amendment (Equal Protection and Due Process) and illegal under the federal Immigration and Nationality Act and the Religious Freedom Restoration Act.
Challenge to Trump’s Executive Order on Immigration Enforcement:
City and County of San Francisco. v. Trump was filed in federal court in California (the Northern District of California) by San Francisco city and county, which are local governments with “Sanctuary Policies” (see States section below). Using the Constitution’s 10th Amendment, the San Francisco plaintiffs argue that the President cannot require the states to enforce federal programs. Because President Trump’s order is threatening to cut federal funding in order to achieve this enforcement goal, San Francisco also argues that Trump is violating Article I, Section 8 of the Constitution (the “Spending Clause”) that gives the power to control federal funds to Congress (and not the executive branch).
Immigration is primarily a federal issue, but states and localities (cities, towns) may create laws or policies relating to immigration that do not conflict with federal laws.
One such type of policy is “Sanctuary Policies” put in place by many local jurisdictions (cities and counties) around the nation. “Sanctuary Cities” and “Sanctuary Counties” have created policies that their law enforcement officers (local police) and other local government agents (in jails, for example) will not ask about immigration status when going about their activities, and the cities/counties otherwise will not spend local funds on enforcement of federal immigration responsibilities. Cities/counties with these policies must still cooperate with federal officials as defined by federal immigration law, but federal immigration law does not (and arguably cannot, see San Francisco v. Trump in the Judicial column) command the states to perform federal responsibilities.
On the other hand, there is a provision of the Immigration and Nationality Act (Section 287(g)) that states that the federal government may make an agreement with a local government, whereby that local government aids the federal government in enforcing immigration policy.