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Here’s Why Immigration Should be a “Three-Branch” Issue, and Why it Isn’t Right Now

The United States, from its Native American predecessors who immigrated to North America around twenty thousand years ago to the millions of European immigrants who arrived many years later, often prides itself as the embodiment of diversity and opportunity for all. Still, it’s difficult to say that the U.S.’ reputation precedes it when looking at the harsh realities of its contemporary immigration policies and the discriminatory history of its overall immigration system. Whether it’s the “kids in cages” being referenced in the 2020 presidential debates or the fact that immigrants, even children with no legal guardian to represent them, are forced to argue for their right to asylum without any legal right to an attorney, immigration is an oft-misunderstood topic that is constantly being pushed to the forefront of Americans’ minds. 

The intended “layout” of immigration policy charges Congress with absolute lawmaking authority and the executive branch with its enforcement, however, little has been done to streamline the process or create stable, long-lasting policy that adapts to the nation’s needs. Under the system proposed in this article, Congress would apportion specific powers over immigration to the executive and judicial branches in order to unify them in their handling of immigration and reassert their supreme authority over the matter. 

The first instance of U.S. immigration law was passed by Congress in the form of the 1790 Naturalization Act, which granted any free white person of “good character” who had been living in the U.S. for at least two years to apply for citizenship. In 1876, the Supreme Court declared that the regulation of immigration is a federal responsibility. From 1900 to 1950, the U.S. introduced the first nationality-based quota systems, which were then altered in the 1960s to place preference on immigrants with family members already in the U.S. and those with skills deemed “desirable.” The ending years of the century were filled with policies covering refugee admission, border enforcement, and amnesty for millions of immigrants. Congress increased available visas by 40% to 700,000, prioritized family reunification, employment-related immigration, and immigrant diversity, and mandated a study of immigration later known as the Jordan Commission.

The shift in immigration authority towards the executive branch occurred in the wake of 9/11. The Enhanced Border Security and Visa Entry Reform Act and Homeland Security Act transferred nearly all the functions of the U.S. Immigration and Naturalization Service (INS) to the newly-formed Department of Homeland Security (DHS) in 2002. Recent law has almost entirely resulted from executive orders. Then-President Barack Obama introduced the Deferred Action for Childhood Arrivals (DACA) and Parents of Americans (DAPA) orders in 2012 and 2014 respectively, while then-President Donald Trump signed an executive order that restricted admission of the citizens of seven countries, rescinded DAPA, and began to phase out DACA. 

Given this convoluted history, it can be difficult to understand where exactly authority over immigration lies. While the Constitution never specifically discusses immigration, the federal courts granted Congress the broad power to exclude or remove noncitizens from the United States under their interpretations. The courts, after outlining Congress’ absolute authority over this issue-better known as plenary power-, maintained that they would leave the issue to the “political” branches and keep the judicial branch as uninvolved as possible. The executive branch, through various Constitutional interpretations, is charged with enforcing the laws of Congress and, in terms of immigration, given broad powers over who is allowed into the country and how to maintain those policies. In our current immigration system, Congress has adopted a relatively “hands-off” approach to the issue by allowing the president to dictate recent policies. 

The system proposed by this article would have the legislative branch apportion specific powers to the other branches in order to address three central issues present in the current U.S. immigration system: Flawed quota systems, judicial exclusion, and a lack of legal permanence. 

The legislative branch could actively address systemic issues, including the flawed quota processes, through its reassertion of plenary authority. Based on previous Congressional immigration policies, this branch appears best poised to increase amnesty opportunities for immigrants currently living in the U.S. and visa availability for immigrants seeking entry. Though the reforms introduced directly after 9/11 would indicate a trend towards stricter, anti-immigrant legislation, Congress’ more recent actions illustrate that the opposite is much likelier. Separate bills introduced in 2006 and 2007 offered amnesty to a majority of illegal immigrants already in the country and planned to dramatically increase legal immigration by reforming the current nonsensical quota system. Both failed to pass a cloture vote not due to legislative opposition, but instead a lack of public support or interest. Seeing as public interest in immigration reform has surged in recent years, Congress now has ample opportunity-and incentive- to streamline the immigration process, introduce new pathways to citizenship, and reform the quota system. Though, at the time of this article’s writing, the partisan makeup of the incoming Congress is unknown, it’s clear that the narrow partisan majority that will be present regardless necessitates bipartisan cooperation towards these bills. 

The executive branch, on a contrasting note, would now be subject to clear restrictions to its authority in order to introduce longevity to immigration law. Currently, immigrants are unjustly forced to endure constantly shifting executive policy in which one president spends their term reversing the work of the last. Donald Trump’s immigration policy consisted primarily of undoing Obama’s DACA program and reducing migration into the U.S., resulting in anxiety nationwide for “dreamers” and worldwide for asylum-seekers. President-elect Biden has now said that he plans on dismantling Trump’s immigration reforms and reinstating those of Obama. By instead having Congress outline the specific ways in which the executive branch can enforce immigration policies and use Congressional oversight to enforce ultimate legislative authority over immigration, the executive branch will experience newfound accountability and immigration law will become significantly more consistent. Congress often asserts its authority in such a manner by restricting monetary flow to the executive branch through the “power of the purse” until the presidency relents.

The newly-involved judicial branch could then address the issue of judicial exclusion. As a result of the current U.S. immigration system’s layout, immigrants have no ability to report flaws or atrocities experienced within the system, are denied legal representation in “executive branch courts,” and are unable to appeal their verdicts or argue their cases. The proposed system has Congress apportion power to the judicial branch as an overseeing body and constant, independent resource for immigrants. The branch can oversee a judicial “audit” of the current system to clarify and review existing policies in the way it currently reviews the constitutionality and equitability of congressional plans and bills. Immigrants will also be guaranteed the constitutional right to an attorney because of the judicial branch’s newfound involvement in immigration, consequently improving immigrants’ ability to report systemic flaws or remain in the U.S. The executive branch will also experience harsher judicial oversight and increased pressure to properly process migrants (which is especially important when considering that the Trump administration still cannot find the parents of 545 migrant children held by them). 

It’s important to note that the judicial branch, given the highly-politicized nature of the current Supreme Court, would still be restricted from legislating and subject to the plenary authority of the legislative branch. The primary purpose of appointing power to this branch is to provide constitutionally and naturally-guaranteed rights to all U.S. migrants and ensure future judicial investment in the streamlining and proper maintenance of the immigration system. 

The need for immigration reform is clear and extremely time-sensitive. Immigrants are being abused, denied basic human rights, and put through unnecessarily complicated systems with no guarantee of safety or opportunity every single day, regardless of the administration in place. With the Democratic party set to control the executive branch and House of Representatives while establishing either a slim minority or majority in the Senate in 2021, there is an incredibly rare opportunity present for the federal government to institute widespread systemic immigration reform with ample public support and little bureaucratic resistance.

Photo: Image via Flickr (Joe Flood)

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