This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
As the election nears, our clients have been asking — with increasing frequency and understandable concern — about what a new president could do to alter our immigration system.
We’ve already examined former President Trump’s voluble and extraordinary policy proposals; in our view, Vice-President Harris has yet to provide sufficient detail on what she might do in the area, so we’re keeping our powder dry for when she does. The purpose of this article is to take a step back and talk about the legal architecture behind our immigration system, which both constrains and empowers any president.
Tiramisu is our preferred metaphor.
Federal immigration law can be usefully separated into layers. At the very top — a light dusting of cocoa powder and sugar — we have the Federal Constitution, and its (very brief) discussion of immigration, which is largely limited to empowering Congress to “establish a uniform rule of naturalization.”
This Constitutional mandate explicitly empowers Congress (and, by implication, disempowers the several states) to regulate immigration, which is one important reason why state lawsuits seeking to modify federal immigration policy face substantial roadblocks. The Constitution’s amendments concerning search and seizure, due process of law, and equal protection of the laws also occasionally — but rarely — impact the immigration system.
The sponge of the cake is statutory, and there are just three statutes of significance: the Immigration and Nationality Act of 1965, the Immigration Reform and Control Act of 1986, and the IIRAIRA (Illegal Immigration and Immigrant Responsibility Act) of 1996.
The first established the Preference System, under which certain categories of prospective immigrants, like unskilled workers and siblings of U.S. citizens, face extremely long waits, whereas other categories of prospective workers, like highly skilled workers and children of permanent residents, also face extremely long waits. The second is the Reagan Amnesty, which legalized large numbers of unauthorized migrants and introduced the I-9 system. The third, IIRAIRA, sharply curtailed the relief available to immigrants facing deportation and tightened the standards for financial responsibility for prospective permanent residents.
The binding of the cake is regulatory. Like most of American law, the regulatory apparatus has outgrown its statutory grounding to a striking degree. The Department of Homeland Security, and the Department of Labor issue regulations frequently which have massive effects on our immigration system — to name just one of recent vintage, the near-doubling of application prices.
The sugar — or absence thereof — is executive policy decisions.
The picture of Presidential power, with respect to our immigration laws, is therefore as follows:
- No President can change the Constitution. With the exception of the 14th Amendment — and we all know how that came about — no Constitutional amendment concerning immigration has ever been ratified.
- Very, very few presidents can pass a significant immigration statute. The list of those who have succeeded in living memory is short: Truman, Johnson, Reagan, Clinton. The list of those who have failed is much longer, particularly among recent presidents. President George W. Bush, President Obama, President Trump, and President Biden all promised substantial immigration legislation. Presidents Bush and Obama came closest, but all failed to pass significant immigration reform measures.
- All modern presidents can promulgate regulations — more’s the pity — and all modern Presidents do. But our regulatory system is fraught with procedural complexity and delay, and can be combatted via litigation.
- All modern presidents can announce executive policy changes, and all modern presidents do. Here is where the real action in immigration law is likely to be in the next administration. Presidents can use Congressionally granted power creatively, as President Biden did with Parole in Place and President Trump did with Title 42.
Most immigration benefits are a matter of statutory authority. Green cards are issued under the immediate relative and preference categories established by the Immigration and Nationality Act; without legislative changes, the administrative machinery will continue to rumble.
But, at the margins — at the border, in the immigration courts, and in its regulatory interpretations — a new President has substantial power to affect how the system operates. That power is not absolute, but it is substantial.
As always, we are grateful for your questions and comments, and will do our best to respond.
