In the context of increased immigration of the population around the world, the issue of immigration policy is becoming an increasingly urgent topic nowadays. As more people enter the United States and the racial composition changes, the problem becomes more intense. It actualizes the necessity to describe what measures are implemented by each branch of the government in order to make the US immigration policy more effective. Immigration policy is mainly determined by the legislative and executive branches of government, and the judicial branch decides the fate of migrants based on it and can also agree or contradict the government’s policy.
With regard to the legislative branch, Congress regulates immigration policy through legislation that not only affects immigration control but also regulates immigrants’ rights in the US. The fundamental basis of the US immigration policy is that the federal government (the legislative and the executive branches) has the “plenary power” over immigration (Lim, 2020). Usually, the issue of immigration is closely related to the problems of unemployment and, as a consequence, the increase in the level of crime and terrorism.
Legislation in this field is often associated with restricting the entry of foreigners into the United States and regulating their labor rights. Since the 1980s, especially after “Operation Hold the Line” (1993) and “Operation Gatekeeper” (1994), the adopted laws have been aimed at attempts to stop immigration flows along the border between the US and Mexico (Lim, 2020, p. 220). Thus, as illegal immigration (primarily from Mexico) is one of the most serious problems in the US, there is a threat to the American economy and national security. The US immigration system because Congress last significantly reformed it about 30 years ago (Kerwin and Warren, 2017). The immigration system formed by the legislature is predominantly concerned with national security issues and may in some respects ignore the values of humanism in relation to refugees.
Recently, the power in the area of immigration policy has been most actively utilized by the executive branch. Although Congress has a monopoly regarding governing admission and non-citizens’ deportation, it delegated wide authority to the executive branch. In other words, the executive power decides how to implement the laws and allocate resources. Concerning the executive power, the immigration policy is influenced primarily by the president that participates in immigration policy using proclamations and executive orders. Executive orders are instruments, which might enable presidents to sidestep Congress and promote their policies one-sidedly. Presidential proclamations are considered to be symbolic and associated with national holidays. However, immigration, along with trade, is an exception, which means that presidents have the right to “suspend the entry of all aliens” and “impose on the entry of aliens any restrictions” (Waslin, 2020, p. 55). Thus, it can be said that the US president can affect immigration policy significantly.
Usually, the executive’s proclamations and EOs concern public administration, the creation of immigration quotas, certain structures responsible for accountability and enforcement in this area, and creating policies aimed at restricting the entry of non-citizens. Regarding government administration, for example, John F. Kennedy designated the Department of State to perform some functions associated with the Migration and Refugee Assistance Act of 1962 (Waslin, 2020). With respect to task forces, an executive order of Obama implied an inter-institutional working group that had to coordinate and implement governing enhancement in order to develop and improve outside visitor processing to generate employment (Waslin, 2020). One of Clinton’s Eos created additional penalties for employers that illegally recruit immigrants.
Speaking about the specific measures that have been taken in this area recently, Trump’s policy should be considered since he was most actively involved in immigration policy issues. In his research on presidential immigration policy of Trump, Waslin (2020) investigates his EOs and proclamations. For example, among Trump’s EOs, there are those, which create a new immigration policy, restrict the entry of some migrant groups, and provide instructions to state organizations on how to apply particular laws. The author claims that the greater part of these documents is aimed to “restrict admissions of legal immigrants and increase enforcement along the border and in the interior of the US” (Waslin, 2020, p. 54). For example, through a proclamation, Trump stated a national emergency situation along the southern border and dispatched the military forces to assist with border policing. He issued certain proclamations, which prohibited the entry of all people except at entrance points. At the same time, Congress that belongs to the legislative branch mainly avoided taking on legislation related to immigration.
The judicial branch explains and applies the laws; consequently, applying constitutional standards to immigration cases, courts can uphold or do not uphold the legislative and the executive branches’ acts regarding immigration. The federal immigration policy of the US is based on the “penalty power” doctrine, according to which the legislative and the executive branches have exclusive power to regulate all immigration aspects (Lim, 2020). It means that the US Supreme Court took a hands-off approach when it was asked to examine the immigration decisions of other branches. However, there is a movement that indicates decreasing political-branch control over the immigration issue for the benefit of a judge-administered system. This situation is a result of greater judicial attention to individual rights and has its roots in the idea that foreigners have a certain right to immigrate to the US.
As it was mentioned above, during Trump’s administration, the legislative branch represented by Congress avoided making legislative decisions regarding immigration and contradict the will of the president. As for the judicial branch, it was weakened as well within the period (Lim, 2020). However, it had the resources to resist measures that he considered incorrect. For example, in June 2018, the federal district court of California gave its order prohibiting future separations for families that are in the custody of the Department of Homeland Security (Lim, 2020). It should be said that the immigration court system differs from the traditional one. An immigration judge makes a decision whether a foreigner that is charged with violating immigration law should be removed and whether he or she is entitled to any kind of relief. Thus, immigration courts interact directly with immigrants and decide their fate, based on legislation, the main role in the creation of which is played by the legislative and executive branches. The Supreme Court has the power to oppose established policies, and federal courts can also influence immigration policies.
To conclude, the major role in the issue of immigration policy is assigned to the legislative and executive authorities. The legislature, represented by Congress, enacts immigration legislation, while the president can participate in immigration policy through EOs and proclamations. Nevertheless, the judicial branch is gaining more and more strength in this area and may contradict the existing policy if courts consider its tendencies to be inconsistent with constitutional standards.
Kerwin, D., & Warren, R. (2017). National interests and common ground in the US immigration debate: How to legalize the US immigration system and permanently reduce its undocumented population. Journal on Migration and Human Security, 5(2), 297–330. Web.
Lim, J. (2020). Immigration, plenary powers, and sovereignty talk: Then and now. The Journal of the Gilded Age and Progressive Era, 19(2), 217–229.
Waslin, M. (2020). The use of executive orders and proclamations to create immigration policy: Trump in historical perspective. Journal on Migration and Human Security, 8(1), 54–67. Web.