Day 354: Who Has the Power?

It’s been a big week for demonstrating who possess the power to regulate immigration — and who doesn’t.

States v. Federal: U.S. v. Iowa

Photo by Kelly Sikkema on Unsplash

First, a federal judge in Iowa granted a preliminary injunction preventing Iowa’s new immigration law from taking effect. The Iowa law, based on a similar law in Texas, would have made it a crime for any noncitizen to be present in the United States after a prior order of removal, even for people lawfully in the country, including lawful permanent residents. This sometimes happens for spouses of U.S. citizens — DHS may waive the effect of a prior removal order to avoid serious hardship to U.S. citizen relatives. With a waiver, a person may be lawfully permitted to re-enter and to adjust to permanent residency. Despite the carefully considered federal process and democratically-negotiated federal laws underlying all this, Iowa would have taken matters into their own hands and made this a crime.

Not only that, but it would have permitted judges to effectively order the person removed to the country from which they entered — usually Mexico. That’s true even if the person is not a Mexican national — and rest assured that the government of Mexico was having none of it. This would cripple U.S.-Mexican relations.

There’s more you could say about why the Iowa law is crazy, but these reasons were enough for Judge Stephen Locher to hold that the United States has a “likelihood of success on the merits” and to block the law from taking effect while the full case proceeds. The Iowa law, Judge Locher says, may be good politics, but it’s not good law. The United States has preempted all state immigration laws, especially those, like Iowa’s, that conflict with federal immigration law.

(Maddeningly, today’s order seems to blocked by firewalls — though you can read it here if you’re a New York Times subscriber and here if you subscribe to Law360.)

The federal court in Iowa (and one in Texas that enjoined a similar law there) emphasized what should have been obvious to those legislatures: Since 1876, federal law has given exclusive immigration jurisdiction to the federal government, not the states. (And if the Supreme Court ignores 120 years of precedent and overrules all those decisions, that’s when you will see me on the streets with picket signs.)

Legislative v. Executive (v. Judicial): Parole In Place

That’s the federal-state tussle. At the federal level, there’s a jockeying going on too.

Today, the Biden administration announced a new program that will allow the spouses of U.S. citizens to become permanent residents without having to leave the country.

Many people assume that people who marry U.S. citizens automatically become citizens themselves. Not true. A person who entered the country unlawfully cannot become a permanent resident or citizen without leaving the country, because that requires a “lawful entry.” But once the person leaves the country, their prior unlawful presence (if over six months) will bar them from returning for either three or ten years, depending on how long they were here. It’s possible to get this waived, but they would have to show “extreme hardship” to their U.S. citizen spouse or parents. The “typical” case isn’t supposed to qualify. So those families are just stuck with having a spouse or parent who can’t get permanent immigration status (and remains always subject to removal).

The Biden administration announced today a program to grant parole for such spouses of U.S. citizens (there’s about 500,000 of them nationally). Instead of having to leave the country and trigger the unlawful presence bar on reentry, those noncitizens would be allowed to apply for permanent residency without leaving that country.

The Biden announcement illustrates who, in the federal government, is controlling immigration policy. With Congress unable to pass any major immigration reform legislation since 2013, only the executive branch is capable of responding to current developments, using all the regulatory authority available to it under existing laws.

And if the Supreme Court overrules or substantially limits Chevron v. National Resources Defense Council this week, as anticipated, it will allow courts more leeway to shut down even that limited executive power. That would leave both of the political branches either hamstrung (executive) or paralyzed (Congress) in trying to manage immigration.