The Election and American Immigration

Eric R. Welsh

America, if you have not heard, is electing a president in a couple of weeks.  This may well be, as the media seems to remind us constantly, the most consequential election in a generation.  President is a rather important position in American government, constituting one third of our constitutional trinity (the other two being Congress and the federal courts).  Thus, the decision whether to reelect Donald Trump, or to replace him with former vice president Joe Biden, is, to put it mildly, an important one.

Perhaps more than any other area of governance, the president wields tremendous authority over the operation of American immigration laws.  Immigration has become a potent political tool, inflaming passions across the political spectrum.  There is very little agreement amongst seemingly intelligent and sensible people about whether immigration is good or bad for the country.  Some argue that America has a historic and moral responsibility to support immigration, while others contend that America should focus its attention and resources on its own native citizenry.  Both sides cite statistics, anecdotes, and individual examples to support a position that: immigrants are essential to the American economy, or they take jobs from American workers; immigrants are high achievers, or they are dangerous criminals.  None of these claims are true in the absolute, but when it comes to politics, truth is of little concern.

Whatever the politics, the simple fact is that the president can effect enormous change over U.S. immigration.  American immigration is, for all intents and purposes, entirely administrative, meaning that it all falls under the executive branch of government.  Congress makes the statutes, and the courts interpret them, but the executive agencies are responsible for administering the laws.  As the chief executive, the president controls (at least indirectly) every one of these agencies, including the Department of Homeland Security, the Department of State, the Department of Justice, and the Department of Labor.  Subject to congressional approval, the president appoints the head of each agency, as well as the heads of the subagencies (including the directors of U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement).

There are very few checks and balances in U.S. immigration.  The immigration judges that decide if a person should be removed (deported) and the appellate body that decides if those judges made the right decision (the Board of Immigration Appeals) exist within the Department of Justice, an executive (i.e., presidential) agency.  The Department of Homeland Security (DHS), another executive agency, is tasked with deciding who is allowed to enter the country through its subagency, Customs and Border Patrol (CBP), who should receive immigration benefits like green cards and citizenship through the subagency the U.S. Citizenship and Immigration Services (USCIS), and who should be arrested and prosecuted for removal through another subagency, Immigration and Customs Enforcement (ICE).  DHS, like other executive agencies, is authorized to make new rules through federal regulation and policy memoranda, and the courts give the agencies extremely broad authority to do so.

All of this is just the daily nuts-and-bolts part of American immigration law, but the president’s power does not stop there.  The president can also make law through executive orders.  President Obama, for example, created the Deferred Action for Childhood Arrivals (DACA) program, granting work permits and reprieve from removal to thousands of immigrants that had entered the U.S. as children but had no lawful status.  President Trump, on the other hand, ordered ICE to remove any alien without lawful status, and to maximize the permissible use of “expedited removal,” a fast-track deportation process that limits relief and avoids immigration court.

There is no way to know for certain what Donald Trump would do with another term, or what Joe Biden would do if elected, but we do know that the president is a tremendously powerful person when it comes to U.S. immigration.  Even more powerful, however, is the voter who decides who holds the office.  If you are a U.S. citizen and able to do so, you can make that decision: VOTE.