At least 10 people were killed early on New Year's Day when a truck plowed into a crowd on New Orleans' Bourbon Street.
New Orleans suspect's truck came across border in Eagle Pass, Texas...
Under Section 212(f) of the Immigration and Nationality Act (INA), the president of the United States has the authority to “suspend the entry” of certain noncitizens into the United States under certain circumstances.
While the President can shape immigration policy through executive actions like setting enforcement priorities or issuing proclamations under Section 212(f) of the INA, these are all subject to legislative, judicial, and practical constraints. The balance between presidential action and these limitations often results in a dynamic where significant, lasting changes in immigration policy typically require cooperation or at least acquiescence from Congress.
Many presidential actions on immigration are executive orders, which can be reversed by subsequent administrations. This makes significant changes in policy potentially short-lived without legislative backing.
Congress has plenary power over immigration, which includes the power to regulate the border: Immigration policyCongress has the power to make immigration policy, including rules for admitting aliens, excluding aliens, and regulating their conduct before naturalization.
The primary constraint on presidential power in immigration is the legislative authority of Congress. The Immigration and Nationality Act (INA) and subsequent legislation set the framework for immigration policy, including visa allocations, asylum rules, and naturalization processes. The President can influence these policies through executive actions but cannot unilaterally change statutory law. For instance, while the President can propose changes or seek to enforce existing laws in certain ways, any permanent change to the system requires Congressional action
Congress's immigration decisions are subject to limited judicial oversight. The Supreme Court has generally taken a hands-off approach to reviewing the political branches' immigration decisions. Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States.
While the President has broad discretionary powers regarding immigration enforcement, these powers are not absolute. The Constitution might limit presidential actions through clauses like the Due Process Clause or the Equal Protection Clause. For example, policies that explicitly discriminate based on religion or nationality might face constitutional challenges.
The President's ability to enact immigration policy is also constrained by administrative capacity and resources. Implementing new policies or changing enforcement priorities requires coordination among various agencies, funding, and logistical support. Overly ambitious or sudden changes might be impractical to enforce effectively.
The plenary power doctrine is based on the idea that immigration is a matter of national sovereignty, and that a nation has the right to define its own borders. The federal government's role in immigration began with the Immigration Act of 1891, which gave the federal government direct control over the inspection, admission, rejection, and processing of immigrants
Article I, Section 8, Clause 18: [The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Congress, lead by Speaker Johnson must act now.
Editorial comments expressed in this column are the sole opinion of the writer.
