The U.S. Immigration System Survives on Executive Action but Needs Legislative Reform

Photo by Darren Halstead on Unsplash

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

President Biden emphasized during his campaign that immigration reform was a top priority of his Administration. On day one of his presidency, President Biden issued multiple executive orders addressing immigration and introduced a comprehensive immigration bill aimed at revamping and modernizing the U.S. immigration system.[1] The U.S. Citizenship Act of 2021 (“the bill”) was introduced to Congress on February 18, 2021, promising to modernize the country’s immigration system, keep families together, grow the economy, manage the border, and address the root causes of immigration.[2] Proponents of progressive immigration policy are excited and optimistic about the bill, but many, including several Democratic members of Congress, fear that the bill has no hope of passing both houses of Congress and becoming law.[3]

Part II of this article will provide a brief overview of the progression of modern U.S. immigration law and the executive actions taken by the three most recent U.S. presidents. Part III will describe the U.S. Citizenship Act of 2021. Part IV will discuss the challenges the bill faces, explain the dangers of an immigration system largely controlled by executive action, and discuss the need for new immigration legislation to effectively address the shortcomings of the U.S. immigration system and offer lasting change.

II. Background

A. Legislative History

Although immigration has been a part of U.S. law since 1790, the Immigration and Nationality Act of 1965 marked the beginning of a new era of immigration legislation. The Act replaced the national origins quota system with a seven-category preference system emphasizing family reunification and skilled immigrants.[4] In 1980, Congress passed the Refugee Act which created a general policy for admissions of refugees.[5] Congress later passed the Immigration Control and Reform Act in 1986, granting legal status to millions of unauthorized immigrants who satisfied certain conditions, and the Immigration Act of 1990, creating specific work visas and establishing the “Temporary Protected Status” (“TPS”)  program.[6] Congress passed subsequent laws in 1996, 2002, and 2006 emphasizing border control, employment laws, and tightened admission eligibility in response to growing concerns about terrorism and unauthorized immigration.[7]

Since 2006, no comprehensive immigration bill has come close to becoming law.[8] In 2007, Republican President George W. Bush and Democratic Representative Nancy Pelosi drafted a comprehensive bipartisan immigration reform bill; however, the bill was never introduced for a vote.[9] In 2013, the Obama Administration’s bipartisan effort to pass immigration legislation also failed—the bill passed in the Senate but never came up for a vote in the House.[10] Finally, in 2018, three immigration bills were introduced to the House floor, and none of the bills passed in the House.[11]

B. Executive Action

Congress’ unwillingness to pass immigration legislation stems in part from the increasingly polarized nature of immigration. Immigration issues are at the forefront of both the Republican and Democratic Party platforms, and recent presidents from both parties have wielded their executive power to invoke policy change within the immigration system. President Obama used executive power to enacted the Deferred Action for Childhood Arrivals (“DACA”) program in 2012 which provides two-year work permits for “Dreamers”—young adults brought to the U.S. without authorization as children—who meet certain requirements.[12]

President Trump took numerous executive actions to implement his immigration agenda, beginning with his travel ban (also known as the “Muslim ban”) which restricted travel to the U.S. from seven largely-Muslim countries and significantly lowered the number of refugees eligible to be admitted to the U.S.[13] President Trump later enacted the “Remain in Mexico” policy which required those seeking asylum at the southern border to wait in Mexico until their court date.[14] Additional policies enacted by President Trump’s executive actions included the third country transit bar, the “zero tolerance” policy that led to an increase in detentions and family separation for those crossing the southern border without proper documentation, the 2019 “public charge” rule, and various exclusionary measures related to the COVID-19 pandemic.[15]

President Biden took executive action during his first days in office in an effort to quickly reverse several of the Trump Administration’s immigration policies. On day one, President Biden halted construction and funding of the southern border wall, reversed the Muslim ban, and fortified DACA.[16] Additionally, President Biden issued executive orders that expanded the United States Refugee Admissions Program and rescinded Trump policies that limited refugee admissions, disbanded the family separation policy at the border, and created a task force to reunite separated families.[17]

III. United States Citizenship Act of 2021

On his first day in office, President Biden introduced the U.S. Citizenship Act of 2021, an immigration bill intended “to restore humanity and American values to our immigration system.”[18] This bill proposes the most far-reaching changes to immigration law in more than three decades.[19]

Significantly, the bill creates an eight-year pathway to citizenship for 11 million undocumented immigrants.[20] Undocumented individuals physically present in the U.S. before January 1, 2021 will be eligible to apply for temporary legal status and will have the ability to apply for green cards after five years.[21] DACA recipients, TPS holders, and immigrant farmworkers meeting certain qualifications will be eligible for green cards immediately. After three years of green card status, individuals may apply for citizenship.[22]

The bill also prioritizes family unity by “allowing immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.”[23] Further, the bill seeks to embrace and protect diversity within the immigration system by including protections for LGBTQ+ families, introducing the NO BAN Act that prohibits discrimination based on religion, and increasing Diversity visas from 50,000 to 80,000 annually.[24]

The bill also seeks to address aspects of the employment-based immigration process and increase its efficiency by “clear[ing] employment-based visa backlogs, recaptur[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.”[25] The bill supports immigrant workers in high-wage sectors by making it easier for graduates of universities with advanced STEM degrees to stay in the U.S.[26] Similarly, the bill includes protections for low-wage migrant and seasonal workers who encounter workplace retaliation and employers who violate labor laws.[27]

Finally, the bill improves the immigration court system through expanded training and modernized technology, eliminates the one-year filing deadline for asylum claims, addresses the root causes of migration, and, notably, changes the word “alien” to “noncitizen” in U.S. immigration laws.[28]

IV. Discussion

The U.S. immigration system needs legislative reform, and the U.S. Citizenship Act of 2021 is a step in the right direction. However, the Act will not reform the immigration system if it fails to become law. Immigration bills, both small and large, have failed in Congress since the early 2000s, leaving presidential administrations concerned about immigration with little choice but to implement policy objectives through executive action. For example, The Development, Relief, and Education for Alien Minors (“DREAM”) Act was introduced to Congress in 2001 and, like the current DACA program, would have provided a pathway to legal status for undocumented individuals who came into the U.S. without authorization as a child.[29] Over the last two decades, at least ten versions of the DREAM Act have been introduced in Congress, and, despite bipartisan support, none have become law.[30] In 2012, President Obama bypassed the Congressional gridlock and implemented the DACA program through executive action, accomplishing the same goal as the DREAM Act.[31]

The issue with an immigration system heavily premised on executive action is its volatility—every four years, immigration policy may be turned completely on its head as different presidential administrations with different ideological approaches to immigration hold the power to make executive decisions. This flaw is exemplified by both the Trump and Biden Administrations. President Trump implemented policy decisions through executive actions that dramatically impacted the immigration landscape: immigrants from numerous countries were banned, asylum-seekers were required to reside in Mexico while their asylum claims were processed, and the allowed number of refugees and asylees per year was slashed.[32] Four years later, President Biden reversed many of these Trump Administration policies with the stroke of a pen and implemented policies of his own; and, four years from now, another president might do the same to President Biden’s policies. Although not all executive actions are completely vulnerable, illustrated by President Trump’s unsuccessful efforts to discontinue the DACA program,[33] the night-and-day difference between immigration policy on January 19, 2021 and January 20, 2021 sheds light on the unstable nature of the whole system.

Further, a volatile system poses significant logistical issues. For example, the number of refugee admissions decreased every year of the Trump Administration and hit a record-low of 15,000 in his last year in office.[34] During this time, the immigration system and government-funded refugee resettlement agencies operated on a budget and resource allocation that reflected these low numbers. Since taking office, President Biden has vowed to raise refugee admissions to 62,500 for the current budget year,[35] meaning that these agencies must find a way to quickly accommodate this exponential increase.

Legislation works to combat this volatility. Executive action must comport with existing legislation and the constitution, so any changes made by Congress to immigration legislation cannot be contradicted by executive actions.[36] This point is illustrated by President Biden’s approach to the Muslim ban. President Biden effectively reversed the ban through an executive order; however, President Biden’s executive order is potentially vulnerable to reversal by a future president. Accordingly, President Biden included a provision in his immigration bill that limits a president’s ability to issue bans like the Muslim ban in the future. Legislation offers security that extends past a president’s term, and, based upon Congress’ unwillingness to pass any sort of immigration legislation, any successful immigration legislation is likely to last.

V. Conclusion

New immigration legislation is not only the most effective way to comprehensively address the shortcomings of the current immigration system, but it will also protect immigration policy issues from the volatility of executive action. Although the U.S. Citizenship Act of 2021 offers much-needed revisions and additions to U.S. immigration law, its effects will only be realized if the bill does, in fact, become law. Based upon Congress’ record with immigration legislation and the polarized nature of immigration itself, the bill, as it stands, is unlikely to pass both houses. As several Democratic members of Congress have stated, the Biden Administration stands a better chance of passing key sections of the current immigration bill if those sections are isolated and introduced individually. However, any immigration bill faces a steep uphill battle as even bipartisan efforts to pass immigration legislation have all failed since 2006. Without legislative action, executive action will remain the main mode of immigration policy implementation, leaving the whole system vulnerable every time a change in presidential administration occurs.

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[1] Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System, The White House (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.

[2] Id.

[3] Laura Barron-Lopez, Biden’s immigration bill lands on the Hill facing bleak odds, Politico (Feb. 18, 2021), https://www.politico.com/news/2021/02/18/bidens-immigration-bill-bleak-odds-469769.

[4] D’Vera Cohn, How U.S. immigration laws and rules have changed through history, Pew Research Center (Sept. 30, 2015), https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Elaine Kamarack and Christine Stenglein, Can immigration reform happen? A look back, Brookings (Feb. 11, 2019), https://www.brookings.edu/blog/fixgov/2019/02/11/can-immigration-reform-happen-a-look-back/.

[10] Id.

[11] Id.

[12] Cohn, supra note 4.

[13] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

[14] Priyanka Boghani, A Guide to Some Major Trump Administration Immigration Policies, Frontline (Oct. 22, 2019), https://www.pbs.org/wgbh/frontline/article/a-guide-to-some-major-trump-administration-immigration-policies/.

[15] Id.

[16] First 100 Days of the Biden Administration: Table of Substantive Changes, American Immigration Lawyers Association(Feb. 24, 2021), https://www.aila.org/advo-media/issues/all/first-100-days.

[17] Id.

[18] The White House, supra note 1.

[19] Michael D. Shear, Democratic Lawmakers Introduce Biden’s Immigration Overhaul in House, N.Y. Times (Feb. 18, 2021), https://www.nytimes.com/2021/02/18/us/politics/house-democrats-biden-immigration.html?action=click&module=RelatedLinks&pgtype=Article.

[20] The White House, supra note 1.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] The Dream Act, DACA, and Other Policies Designed to Protect Dreamers, American Immigration Council (Aug. 27, 2020), https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers.

[30] Id.

[31] Id.

[32] Boghani, supra note 14.

[33] Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).

[34] Boghani, supra note 14.

[35] Matthew Lee and Julie Watson, Biden wants to quadruple refugee admissions set by Trump, Associated Press (Feb. 11, 2021), https://apnews.com/article/joe-biden-donald-trump-coronavirus-pandemic-dc238dd2f7f504eb34b8cb26e3d69ae6.

[36] Judicial Review of Executive Orders, Federal Judicial Center (last visited Feb. 22, 2021), https://www.fjc.gov/history/administration/judicial-review-executive-orders.