Where immigration law and policy comes from and its history
The next editions detour from the criminal legal world to discuss immigration, very much an intersectional body of law. Over the last few years, I received many questions about where immigration law and policy comes from and its history, as well as what the various labels mean, such as asylee, migrant, and refugee. While this is a massive topic, I will do my best to give you the tools you need to get or stay informed over the next two or three editions.
Before diving in, I want to emphasize again that immigration law is both a huge and complex topic with numerous tributaries and confluences. If you feel overwhelmed or confused about what you are seeing and hearing about immigration law and policy in the news, you are not alone. Grappling with immigration law is quite a feat for those who practice in the discipline, let alone for those of us, lawyer or layperson, who are trying to stay informed and (perhaps) become engaged in activism.
Immigration Law: The Beginning
Immigration law is generated, enacted, administered, and enforced by the US Federal Government. However, until the mid-1800s, immigration law was largely under the purview of the states. As one scholar posited, “Anxiety over Asian immigration led the federal government to assume regulatory authority over immigration.”1 In response to and because of rampant racism, bigotry, and ethnocentrism, Congress passed a series of laws between 1875 and the late 1880s severely limiting the entry of Chinese people to the US.2
Many people of Chinese descent challenged these racist, exclusionary laws on various bases. In sum, all of the plaintiffs lost. SCOTUS determined that the Federal Government has virtually unqualified plenary power over immigration law. The primary reason is: who is allowed to enter, be excluded, or be removed from this country are matters of national sovereignty and, therefore, that power should belong to the Federal Government.
By deciding this way, SCOTUS severely limited its own power, as well as the power of lower federal courts, to interfere with immigration law and its enforcement.3 These exclusionary, racist laws became the foundation on which modern-day immigration law was built.
What about the states?
Because immigration law is in the federal domain, states may not pass laws that conflict with or infringe upon federal law because of the Supremacy Clause or doctrine of preemption.
For example, states cannot pass laws about who is allowed to enter the country, be excluded from the country, or removed from the country. However, because states have the power to control local issues, such as who is permitted to hold a driver’s license or state-issued identification card, they can pass laws that allow non-citizens to get a driver’s license.
**It’s important to remember that state laws must meet Constitutional muster, meaning that certain limits on government power and protections of individual rights in the Federal Constitution must still be respected by the state. (More about the rights of non-citizens in upcoming newsletters).
Role of Congress
Because immigration law and policy resides in the federal realm, many of the issues discussed in prior newsletters come into play. SCOTUS, as the interpreter of the Constitution, held that Congress, the sole legislative body, has plenary power over creating and enacting immigration law.
Immigration statutes, then, must pass the same way as any other legislation: it must pass both the House and the Senate and it must be signed by the President, or if the President vetoes the bill, Congress can override the veto using the process explained here.
The primary statutes governing immigration are the Immigration and Nationality Act (INA), first enacted in 1952 and amended a number of times since, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted in 1996.4
INA brought together a number of immigration statutes in one place. There is no question that the 1952 act and its earlier iterations, “[i]n all of [their] parts, the most basic purpose of the 1924 Immigration Act [and related statutes] was to preserve the ideal of U.S. homogeneity.”5 Quota systems and other tools were used to limit or prohibit entirely newcomers from Asia and eastern Europe. Now, INA is crafted a bit differently, allegedly removing nationality based quotas with the primary purpose to “to reunite families.” It remains the primary statute outlining the who, what, where, when, and why of entry and relocation to the US.
IIRIRA “created new immigration-related crimes and established the concept of ‘criminal alienhood,’ which has slowly, but purposefully conflated criminality and lack of immigration status.”6 According to scholar Donald Kerwin, IIRIRA also
eliminat[ed] due process from the overwhelming majority of removal cases, curtail[ed] equitable relief from removal, mandat[ed] detention (without individualized custody determinations) for broad swaths of those facing deportation, and erect[ed] insurmountable, technical roadblocks to asylum.
Finally, the Homeland Security Act of 2002 greatly changed the structures that administer, regulate, and enforce immigration laws and regulations. (More on that below).
Ultimately, these statutes delegate significant power to the executive branch to administer, enforce, and regulate.
Resources on the History of Immigration Statutes in the US
For a good summary of these two laws, and the full history of immigration laws passed by Congress, check out the following resources:
“Immigration History,” Department of History, University of Texas at Austin, 2019, available at: https://immigrationhistory.org/timeline/
Stephanie Vatz, “Interactive Timeline: History of Immigration in America,” KQED, May 5, 2013, available at: https://www.kqed.org/lowdown/7383/u-s-immigration-policy-timeline-a-long-history-of-dealing-with-newcomers
“Major US Immigration Laws, from 1790 - Present,” Migration Policy Institute, March 2013, available at: https://www.migrationpolicy.org/sites/default/files/publications/CIR-1790Timeline.pdf
The Role of the Executive Branch in Immigration
The executive branch holds a great deal of power over immigration law, as well, because it is a tasked with the implementation, administration, and enforcement of immigration statutes as delegated by Congress.
First, “[a]s chief executive, the president not only has the duty to enforce laws, but also the authority to decide how to do so.”7 Through this power, the President and his/her executive agencies have immense power to decide who may enter or be removed from the country.8 Some presidents have used this power to issue executive orders regarding who may stay in the country or who is not allowed to enter the country or have used the tool of directing agencies to change policy and regulations.
Trump v. Hawaii acknowledged that presidents hold immense power over national security decisions, including who may be included or excluded from this country. However, DACA was recently declared unconstitutional by a federal district court in Texas. If SCOTUS takes the case, there may be new guidance as to what powers the executive has over immigration. Time will tell.
Executive Agencies and Immigration
In addition to the President, the executive branch is made up of numerous agencies of which the president is the Chief Executive.
After 9/11, the structure of immigration administration and enforcement changed a great deal with the passage of the Homeland Security Act. Immigration and Naturalization Services previously handled nearly all of the immigration process, enforcement, and border patrol. For a history from the government’s perspective, check out this site.
With the creation of the Department of Homeland Security in the Homeland Security Act of 2002, these responsibilities were divided across new or reorganized agencies. In the immgration context, the primary agencies include, but are not limited to:
Department of Homeland Security (DHS)
Customs and Border Patrol (CBP): border immigration enforcement
Immigration and Customs Enforcement (ICE): internal immigration enforcement
Citizen and Immigration Services (USCIS): immigration services, i.e. applying for lawful permanent residency
Department of Justice (DoJ)
Executive Office for Immigration Review (EOIR): responsible for adjudicating immigration cases
Department of State
Bureau of Population, Refugees, and Migration
Department of Health and Human Services
Office of Refugee Resettlement
Key Things to Know About the Administration of Immigration Law
The President is the Chief Executive of each and every one of these agencies, which means every time a new president is elected, the way that immigration law is administered, regulated, and enforced can and does change.
Working in conjunction with the President, the U.S. Attorney General (AG) and the Secretary of Homeland Security hold immense regulatory and administrative power. This means that they can institute policies within their own agencies as to who may enter and remain in the country and who is removed as discussed above.
In particular, DHS and DoJ have immense regulatory authority. Federal immigration is largely governed by the Code of Federal Regulations, Title 8. Aliens and Nationality. These regulations are created by the executive agencies to provide more detail as to the administration and enforcement the immigration statutes enacted by Congress.
While there is a specific process for instituting these regulations, much of immigration law is predicated on regulations that are not enacted by Congress, but are created by the administrative agencies. (For more on the administrative state, check this out).
Immigration courts are overseen by the DoJ not SCOTUS or Article III courts, which are a separate branch of government. Immigration courts are a part of the executive branch.
Immigration judges are appointed by and in the employ of the AG. Immigration judges are not Article III judges, meaning that they are not part of the judicial branch of government. Immigration judges are employed at the pleasure of the AG, and ultimately, the President. They must follow the specific guidance of the AG.
For example, when I was a law student working in the Immigration Clinic, Attorney General Jeff Sessions handed down a directive overruling a decision by the Board of Immigration Appeals, a department of the EOIR in the DoJ. In that decision, Sessions determined that gang violence and domestic violence are not grounds for asylum without further proof that the person’s home government failed to protect them. All immigration judges, then, were required to follow this directive.
Sessions’s directive was devastating to the thousands of individuals who are fleeing violence in their home countries and a total reversal of U.S. policy in recent years. The AG was able to make this change with the stroke of a pen, or more accurately, the press of a button.
*To understand more about the context of this directive and why it was so devastating, check out: Andy Warner and Matthew Green, “Why So Many Central Americans Are Seeking Asylum in the U.S., August 13, 2018, available at: https://www.kqed.org/lowdown/31036/why-so-many-people-in-the-northern-triangle-are-seeking-u-s-asylum
Though, according to SCOTUS, Congress has plenary power over immigration, the executive branch (the President and agency heads) hold immense power over the way the immigration system actually works. Through broad-based regulation, I would argue that the executive branch is, in practice, the most essential component to the ways in which immigration law and policy is acted upon—unless and until Congress legislates otherwise.
In the next edition, I focus more on the ways in which immigration law categorizes and labels individuals entering this country and what those categories and labels mean in practice.
Please do take a look at the immigration law timelines and the attached articles and reports because they provide incredibly important social and historical context for the why of immigration law.
More resources next week, but for now, check out the book lists below.
Thank you for reading!
From the Lutheran Immigration and Refugee Service: https://www.lirs.org/books-about-immigration/
From Book Riot: https://bookriot.com/best-books-about-immigrants/
If you have other suggestions, please add them in the comments!
Gabriel J. Chin, “Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power,” available at: file:///C:/Users/amygr/Downloads/SSRN-id722681.pdf.
Id.; see also, Garrett Epps, “The Ghost of Chae Chan Ping,” The Atlantic, January 20, 2018, available at: https://www.theatlantic.com/politics/archive/2018/01/ghost-haunting-immigration/551015/.
Adam B. Cox and Cristina Rodriguez, “The President and Immigration Law,” available at: file:///C:/Users/amygr/Downloads/SSRN-id1356963.pdf. See also, Ilya Somin, “Immigration Law Defies the American Constitution,” The Atlantic, October 3, 2019, available at: https://www.theatlantic.com/ideas/archive/2019/10/us-immigration-laws-unconstitutional-double-standards/599140/.
For more on IIRIRA, check out this report by Donald Kerwin of the Center for Migration Studies, “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis,” available at: https://cmsny.org/publications/jmhs-iirira-to-trump/.
In that report, Dr. Kerwin recalled that “President William J. Clinton asserted that the legislation strengthened ‘the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally’.”
“The Immigration Act of 1924 (The Johnson-Reed Act),” Office of the Historian, US Department of State, available at: https://history.state.gov/milestones/1921-1936/immigration-act. The Office of the Historian also wrote a piece about the 1952 INA: https://history.state.gov/milestones/1945-1952/immigration-act
Donald Kerwin, “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis,” Center for Migration Studies, available at: https://cmsny.org/publications/jmhs-iirira-to-trump/.
“The President’s Broad Legal Authority to Act on Immigration,” National Immigration Law Center, August 2014, available at: https://www.nilc.org/wp-content/uploads/2015/11/president-legal-authority-2014-08-20.pdf.
Cristina Rodriguez and Adam Cox, “The President and Immigration Law: Introduction to a Just Security Series,” Just Security, October 12, 2020, available at: https://www.justsecurity.org/72793/the-president-and-immigration-law-introduction-to-a-just-security-series/.
See also Cristina Rodriguez, “Trump v. Hawaii and the Future of Presidential Power over Immigration,” American Constitution Society, available at: https://www.acslaw.org/analysis/acs-supreme-court-review/trump-v-hawaii-and-the-future-of-presidential-power-over-immigration/; Peniel Ibe, “5 things to know about the Muslim ban,” American Friends Service Committee, Feb. 21. 2020, available at: https://www.afsc.org/blogs/news-and-commentary/5-things-to-know-about-muslim-ban