We might legit be headed toward 51 different immigration policies
Texas, Iowa, and the contraction of federal immigration powers
Hi, I’m Alison Peck, a law professor and immigration lawyer, and this is How We Got Here, an exploration of our immigration history with updates from the front lines today.
Old News
It’s been an eventful week in immigration policy, and I’ve spent most of the week tracking those development and reading the tea leaves rather than doing archival research.
There’s a lot of news to report — but there are some things about immigration that I thought we had settled a long time ago. Like who’s in charge.
I was wrong.
For the first half of the nineteenth century, immigration debates had been fighting words because they led directly to the slavery question. If the federal government could preclude state control over the movement of persons, could it not just as easily preclude state control over the ownership of persons? For that reason, antebellum southern states would resist federal immigration power to the death.
In 1876, the Supreme Court struck down highly similar laws of New York and Louisiana that purported to regulate entry of foreign persons by charging exorbitant head taxes to vessel owners. In Henderson v. Mayor of City of New York, the Court deemed the issue settled:
We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.
Of course, Henderson involved entry through seaports, which could be taxed. Entry through land borders complicates matters; regulating immigration involves not taxing commercial entities but restricting the movements of migrants themselves. In another case decided the same day a Henderson, however, the Court made clear that the federal power extended to controlling the movements of persons. Striking down a California law that prohibited the entry of “lewd or debauched women” from China, the Court in Chy Lung v. Freeman held,
The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States. It has the power to regulate commerce with foreign nations: the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.
This has been the law for close to 150 years. As recently as 2012, the Court in Arizona v. United States reiterated that
“The federal power to determine immigration policy is well settled. … It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
Moreover, federal regulation of immigration isn’t just a thumbs up/thumbs down decision on each noncitizen but an “extensive and complex” system. It includes not only rules on who may be excluded but also supporting rules like how a person may be excluded, and who can participate in the excluding. And it contains numerous exceptions at every point, built in over time because Congress got tired of entertaining special legislation for every constituent’s loved one who got caught in the jaws of the beast.
Recent Legal Developments: Narrowing the Straits on Federal Power
When the Supreme Court deems something legally settled, it is legally settled – at least if stare decisis has any meaning. Of course, I am not the first scholar to wonder whether it still does. The laws coming from the states and the case law pending before the Supreme Court suggest the law of one (federal) immigration policy may be unraveling.
Step One: Congress Gives Up
Back in the 1870s, the Court took for granted that Congress would be the federal body regulating immigration. The Court in Henderson said that the Constitution “confided to Congress” the immigration power; in Chy Lung, it said that power “belongs to Congress.”
A lot has changed since 1876. The Court then didn’t imagine today’s expansive executive power because the administrative state was in its infancy. (In 1880, the federal government employed 7,800 people.) If the federal government was to regulate immigration, it would be Congress, they presumed, who did the regulating.
No one thinks that anymore. Congress has failed to pass substantial immigration reform legislation since 2013. The recent bi-partisan appropriations bill failed in May after Donald Trump condemned it, some Democratic senators abandoned it, and parties rushed to shore up their records (for or against) on immigration pre-election. Immigration is little more than a whipping post for Congress anymore.
Step Two: The Executive Steps In
For a long time, it’s the executive branch that has made immigration policy, where it lawfully can under existing law – a question that triggers Administrative Procedure Act challenges to nearly every new immigration policy, sure, but a handful do survive.
Executive control tends to happen on multiple fronts, some highly visible, some less so. For example, on June 4, the Department of Homeland Security and Department of Justice issued an “interim final rule” on “Securing the Border” (and don’t get me started on how something can legally be “interim” and “final” at the same time). That rule would make people ineligible for asylum if they enter the country during a declared emergency period, and would raise the bar they need to clear to prove eligibility for withholding of removal or protection under the U.N. Convention against Torture.
On June 18, the Biden administration announced two new policies to benefit certain (more politically popular) groups. Using the executive power to parole people into the country for humanitarian reason or significant public benefit, the administration will allow spouses of U.S. citizens to apply for permanent residency without having to leave the country and endure months-long separation from their families (as they currently must do without a prior lawful entry). The announcement also promised a new State Department policy allowing certain Dreamers to apply for employment-based visas like H-1Bs.
These kinds of visible policies make headlines, but the executive branch takes all kinds of day-to-day administrative actions to fill policy gaps, too. For example, one version of the 2024 immigration bill would have included appointed counsel at government expense for unaccompanied children under age 13 in immigration court proceedings. That, of course, didn’t happen. In the past two weeks, I’ve heard representatives of DHS and the immigration courts (which are part of DOJ) addressing their efforts to ensure that children in immigration court are treated carefully and fairly, efforts ranging from a special docket with specially trained judges and prosecutors to lobbying pro bono legal services providers to offer legal assistance workshops, Know Your Rights presentations, and other legal services to unaccompanied kids.
Step Three (Maybe?): Federal Courts Withdraw Deference to Agencies
If you’re a lawyer, you probably already know about the next step that we’re all awaiting with bated breath: the pending Supreme Court rulings in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Based on oral arguments and previous opinions from many members of the Court, many people expect that these decisions will overrule or substantially limit federal court deference to executive agencies (aka Chevron deference).
If that happens, the executive’s power to take actions like the ones I described above will be further curtailed. Right now, litigants challenging those actions have to overcome the Chevron rule that the courts will defer to executive interpretations of their statutory authority if the statute is ambiguous and the interpretation is reasonable. Next week, that might change. Judges may be free to knock out an executive action any time the judges themselves don’t agree with how the agency interpreted its authority.
This doesn’t mean the executive can’t act on immigration. It does mean that it will be easier to get those actions blocked, assuming you can find one or three or nine people who agree with you.
Narrowing Federal Power, Opening State Power
As of right now, that would benefit both pro- and anti-immigration groups who seek to challenge immigration policies in the federal courts, although the current conservative makeup of the Supreme Court means the big cases (where cert is granted) are likely to lean against.
Under current case law, though, it doesn’t change the balance of federal versus state power. From Henderson to Arizona, the case law says that the “extensive and complex” federal immigration system preempts most state action on immigration.
That’s why two federal judges have recently rejected state laws, from Texas and Iowa, that would have given state authorities broad powers that extend far beyond the federal immigration scheme. The Iowa law makes it a crime to simply be in the country after a prior order of removal even after receiving federal permission to re-enter. Both laws allow state authorities to remove someone not just from that state but from the entire country, forcing them into Mexico even if they are not Mexican nationals.
Governor Greg Abbott of Texas stated that the law was drafted to be consistent with a dissenting opinion in Arizona v. United States. In that opinion, Justice Scalia argued that both federal and state authorities can exclude people from their borders, and state laws are okay as long as they don’t violate a specific exclusions policy of federal law.
Last week, Judge Stephen Locher of the Southern District of Iowa invalidated the Iowa version of the law, a decision that will no doubt be appealed. The Texas law is currently pending on appeal before the Fifth Circuit after being enjoined by the district court. Under the majority opinion in Arizona – which is, after all, still the law until the Supreme Court decides it isn’t anymore – that outcome seems unavoidable.
Even if the Court rejects Arizona and adopts the Scalia approach, that doesn’t end the question of whether state laws like S.B. 4 are permissible. Scalia’s decision does contemplate federal preemption, just not general field preemption. It doesn’t resolve questions such as whether (or which) procedural rules supporting federal immigration policy can be contradicted by the states, or whether states can exclude people not just from their own territories but from the entire country.
But just as the straits are set to narrow on federal immigration power by limiting Chevron, the Court will likely decide whether to open the gates on state policies. The State Department, which has repeatedly testified that such a situation would be a diplomatic nightmare, will likely go to war against states that try to enact policies that differ substantially from the federal policy. Noncitizens (and their counsel), who think the system is byzantine now, will enter into a funhouse that would boggle the mind of Kafka.