The lack of a major overhaul in the United States’ immigration system for roughly thirty years has created an ecosystem where states have attempted to insert their authority over immigration, especially when it comes to enforcement. Texas has made headlines with its tougher approach and outsized role in shaping America’s immigration enforcement policy, while some states have adopted policies to create more welcoming communities. So, when it comes to certain functions of immigration policy, it is worth asking “Whose role is it anyways?”
Over the last year, Texas has used the power of federal courts to stop the implementation of the Biden administration’s immigration enforcement priorities and put into effect its own plan to inspect traffic entering the country through ports-of-entry, a duty typically reserved for U.S. Customs and Border Protection (CBP). But while Texas is the most recent and visible example, the state is by no means alone in shaping policies that impact immigrants living in the United States; some states have opted to adopt laws that make them more welcoming to immigrants, while others have taken an anti-immigrant stance.
What is the role of the federal government?
The U.S. Supreme Court has made clear through cases like Arizona v. U.S. — which invalidated significant parts of SB 1070, a comprehensive Arizona law nicknamed the “show me your papers law” that sought to regulate several aspects of immigrants in the state — that the U.S. Constitution gives the federal government the exclusive power to regulate immigration, not individual states.
As one may recall from high school civics class, Congress is in charge of making the laws. Congress enacted the Immigration and Nationality Act, which regulates everything from the type of visas available to enter the country to the requirements for someone to become a U.S. citizen. This law empowers the executive branch to carry out immigration law.
Since the executive branch is in charge of executing these laws, this power has been delegated to a hodgepodge of federal administrative agencies and subagencies led by the U.S. Department of Homeland Security (DHS). The DHS houses sub-agencies such as:
- U.S. Citizenship and Immigration Services (USCIS), which receives and decides applications for immigration benefits;
- U.S. Customs and Border Protection, which inspects individuals entering the country and detains those who enter without authorization; and
- Immigration and Customs Enforcement (ICE), which arrests those who are found in the country without authorization.
DHS can and does establish a host of regulations that supplement, but don’t supersede, the laws enacted by Congress. These “rules” guide the various DHS subagencies on how to apply and enforce the laws. Recently, for example, DHS published proposed rules that would change the way the agency processes applications for asylum.
Beyond enforcement, the country’s system of immigration courts is also under the purview of the executive branch, in this case the Department of Justice. The DOJ’s Executive Office for Immigration Review makes decisions on who is allowed to remain in the country under the law and who should be removed. Immigration judges are technically employees of the Department of Justice; the United States does not have an independent immigration court system.
What role do states play in our complex immigration system?
States have a very limited role, but that has not stopped states like Texas from attempting to interject their own enforcement methods.
State and local law enforcement agencies may cooperate with the federal government through voluntary programs like the “Secure Communities” and 287(g) agreements. But these programs are voluntary. And due to the controversial nature of these programs, many communities throughout the country have implemented policies that prohibit cooperation between local law enforcement and federal immigration authorities, because such cooperation uses state taxpayer dollars for federal enforcement and ultimately makes communities less safe.
Beyond enforcement, state and local governments can pass laws and ordinances that impact immigrant communities without veering into federal jurisdiction, including:
- While states don’t have the authority to grant employment authorization to immigrants, they do have the power to determine state professional and occupational licensing regulations, which can be used to reduce barriers for internationally trained professionals;
- Determine who can access state-funded social programs;
- Determine residency requirements for in-state tuition and state financial aid at public universities;
- Determine requirements for non-REAL ID compliant state driver’s licenses and identification cards;
- Determine what personal information to include in state data privacy laws, including immigration status;
- Provide government, workforce development, and small business services and information in languages other than English;
- Support access to and navigation through the local primary K-12 school system;
- Make legal assistance available for immigrants who are applying for naturalization or in removal proceedings; and
- Establish a city, county, or state level office of immigrant affairs to help newcomers navigate their new home.
Despite state and local government rhetoric and actions that seem geared toward generating headlines without actually addressing challenges, ultimately it is up to the federal government to address the most pressing immigration policies. But until Congress acts, states and local communities can continue to introduce policies that ensure all residents can belong and thrive.
Written by Leani Garcia Torres and Raul Pinto