Understanding Immigration Law: Why It Works Differently
Part 1 of our series on Immigration Law Foundations
Immigration law touches our lives in profound ways. Whether you're an immigrant, have family members navigating the system, or simply care about how our laws are made, understanding immigration law matters now more than ever.
Over the next six months, we'll explore the foundations of immigration law through a blog series covering topics from constitutional frameworks to administrative procedures, agency operations, and the future of immigration policy. Our goal is to break down complex legal concepts into accessible information that empowers everyone to understand how immigration law actually works.
Today, we begin with a fundamental question: What makes immigration law different from other areas of law?
Why Immigration Law Stands Apart
Immigration law doesn't fit neatly into one category. Unlike environmental regulations, labor protections, or financial rules, immigration law sits at a unique crossroads where constitutional powers, foreign policy concerns, and administrative authority all meet. This creates a legal landscape that operates under different rules than most other areas of law, rules that often grant more power to the executive branch and provide less oversight from courts.
Legal scholars often call immigration law "exceptional" because of the extraordinary discretion it gives to government officials and the limited role courts play in checking that power. To understand why, we need to look at three key areas where immigration law diverges from the norm: constitutional powers, foreign policy concerns, and administrative authority.
The Constitutional Dimension: Broad Government Power, Limited Oversight
The "Plenary Power" Doctrine
At the heart of immigration law's uniqueness lies something called the plenary power doctrine. Established in Supreme Court cases from the late 1800s, including the landmark case Chae Chan Ping v. United States, this doctrine gives Congress and the President sweeping authority over immigration decisions, authority that courts rarely question or limit.
The reasoning behind this doctrine treats immigration regulation as an inherent aspect of national sovereignty rather than just another area of domestic lawmaking. This fundamental characterization has profound implications for how immigration law operates. Immigration rules are often insulated from the ordinary constitutional scrutiny that applies to other government actions. When noncitizens, particularly those outside the United States or at the border, raise claims based on equal protection or due process, courts apply a much weaker form of review than they would in other contexts. Courts frequently defer to the political branches of government even when the same individual rights would receive strong, vigorous protection in other legal areas.
This constitutional exceptionalism has no direct parallel in most regulatory regimes. In areas like environmental law, labor law, or consumer protection, courts consistently enforce constitutional constraints on government power. Immigration law operates in a different constitutional universe, one where the normal rules of judicial review are significantly relaxed.
Unequal Constitutional Protections
Immigration law applies constitutional rights in a fragmented and uneven manner that would be unacceptable in most other legal contexts. The level of constitutional protection a person receives depends on multiple factors that create a complex patchwork of rights. Immigration status matters enormously: U.S. citizens enjoy full constitutional protections, lawful permanent residents have substantial but not complete protections, visa holders have more limited rights, and undocumented immigrants face the most constrained protections. Physical location also determines the scope of constitutional rights, with dramatically different protections applying depending on whether someone is physically inside the United States, standing at the border, or located abroad. Perhaps most troublingly, many people whose lives are profoundly affected by immigration rules lack meaningful access to judicial remedies to challenge those rules.
This fragmented constitutional framework creates significant challenges for fair and consistent policymaking. Immigration agencies operate in a legal space where constitutional norms are present but substantially diluted. The principles of equal protection and due process exist in theory but are applied with far less force than in other areas of law. This creates a legal environment where agencies possess extraordinary power with fewer constitutional checks than would exist in virtually any other regulatory context.
The Foreign Policy Connection: Diplomacy Meets Immigration
Immigration as a Tool of International Relations
Immigration policy functions as far more than a system for deciding who can enter or remain in the United States. It serves as a fundamental tool of foreign policy and international relations. Visa programs can reward allied nations or pressure adversarial ones. Refugee admissions respond to humanitarian crises and signal American values on the world stage. Travel bans and restrictions communicate displeasure with foreign governments or respond to security threats. Asylum rules intersect with international treaty obligations and diplomatic relationships.
This deep entanglement with foreign relations produces specific consequences for how immigration rules are made and reviewed. The executive branch receives heightened deference from courts based on its recognized competence and constitutional primacy in conducting foreign affairs. Courts are particularly reluctant to interfere with immigration rules that are framed as advancing national security interests or fulfilling international obligations. Immigration agencies frequently invoke geopolitical rationales and foreign policy justifications that are simply absent when agencies regulate domestic matters like workplace safety, environmental protection, or consumer finance.
Executive Power and Rapid Changes
The foreign affairs dimension of immigration law empowers the executive branch to act with speed and decisiveness that would be unusual in purely domestic regulatory contexts. Because international relations demand flexibility and the ability to respond rapidly to changing global conditions, immigration rulemaking often bypasses the deliberative legislative processes that characterize other areas of law. Presidents rely heavily on executive orders, presidential proclamations, and interim final rules that take effect immediately without prior public input. Agencies assert emergency justifications or invoke security-based rationales to limit or eliminate public participation in the rulemaking process.
This approach stands in sharp contrast to standard administrative law, where notice-and-comment procedures and robust congressional oversight are considered central to legitimate rulemaking. In most regulatory areas, agencies must publish proposed rules, allow the public weeks or months to submit comments, seriously consider those comments, and explain their final decisions. Immigration agencies sometimes follow these procedures, but they also frequently circumvent them entirely by framing rules as foreign policy or security imperatives that demand immediate action.
The Administrative Dimension: Broad Authority, Flexible Procedures
Sweeping Delegated Powers
Congress has historically delegated remarkably broad authority to immigration agencies, including the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and Customs and Border Protection (“CBP”). Immigration statutes are notable for containing vague standards that provide minimal guidance to agencies, such as authorizing actions "in the national interest" without defining what that means. These statutes grant open-ended discretion that allows agencies to make fundamental policy choices that in other contexts might require explicit legislative authorization. Immigration law also features multiple overlapping grants of authority that give agencies flexibility to justify actions under various statutory provisions.
These delegations of power substantially exceed what is typical in other administrative regimes. In most regulatory areas, Congress provides more specific direction about what agencies can and cannot do. Immigration law's broad delegations enable agencies to reshape policy fundamentally through rulemaking, through guidance documents that lack the force of law, or simply through shifts in enforcement priorities that leave the formal rules unchanged but dramatically alter their practical impact.
Departures from Standard Procedures
Immigration rulemaking frequently departs from the Administrative Procedure Act (“APA”) model that governs most federal agency action. While the APA establishes clear procedures for how agencies should make rules, immigration agencies have developed alternative approaches that provide less transparency and fewer opportunities for public participation. There is heavy reliance on policy memoranda, field guidance documents, and informal rules that can reshape how the immigration system operates without going through formal rulemaking procedures. Agencies often use enforcement discretion as a mechanism to effect major policy changes without engaging in any rulemaking at all. Courts have generally accepted this reduced procedural rigor, especially when immigration rules implicate border control, national security, or foreign affairs.
While courts nominally apply the same APA standards to immigration rules that they apply to other agencies, in practice, immigration rules often receive more deferential judicial treatment. Courts are more willing to accept thin explanations, abbreviated procedures, and limited public participation when reviewing immigration agency actions than when reviewing environmental regulations, labor rules, or financial protections. This creates a two-tiered system of administrative law where immigration agencies operate with greater flexibility and less accountability than agencies in most other domains.
Fragmented Agencies, Enforcement-Focused Rules
The immigration system is enforced by a fragmented collection of agencies with overlapping and sometimes conflicting responsibilities. This institutional structure has significant consequences for how immigration rules are made and implemented. The fragmented structure encourages rulemaking that is closely tied to enforcement priorities rather than being developed through comprehensive policy planning. It blurs the traditional distinction between rulemaking, which establishes general rules applicable to everyone, and adjudication, which resolves individual cases. The division of authority among multiple agencies produces instability as different agencies pursue divergent priorities and as policies shift dramatically with each change in presidential administration.
Unlike other regulatory fields where rules might govern abstract matters like emissions standards or financial disclosures, immigration rules directly govern the most coercive exercises of state power: detention, deportation, and exclusion from the country. This makes immigration rulemaking inseparable from the immediate exercise of physical control over human beings. When an environmental rule changes, it might affect business practices over time. When an immigration rule changes, people can be detained or deported immediately. This enforcement-centered character of immigration law means that rulemaking carries immediate, concrete, and often irreversible consequences for real people's lives and families.
The Consequences of This Unique System
The convergence of constitutional exceptionalism, foreign affairs deference, and administrative flexibility produces several systemic effects that distinguish immigration law from other regulatory regimes. Immigration law has developed parallel doctrines that diverge substantially from mainstream constitutional and administrative jurisprudence, creating what is essentially a separate body of law with its own rules and principles. This doctrinal exceptionalism means that immigration lawyers must learn not just immigration-specific statutes and regulations, but an entirely different set of constitutional and administrative law principles that apply nowhere else.
The immigration system also suffers from a significant democratic deficit in how rules are made. Rulemaking often occurs with limited congressional involvement, as agencies and presidents make major policy changes without new legislation. Public participation in immigration rulemaking is often more constrained than in other regulatory areas, with shorter comment periods, emergency rules that bypass public input entirely, and technical complexity that makes meaningful participation difficult for affected communities. This means that people whose lives are most affected by immigration rules often have the least say in how those rules are developed.
Policy volatility represents another major consequence of immigration law's hybrid structure. Because so much immigration policy is made through executive action rather than legislation, rules can shift rapidly and dramatically with each change in presidential administration. Policies established by one president can be reversed by the next, often without any change in the underlying statutes. This executive-driven rulemaking enables rapid policy reversals that undermine predictability and frustrate the legitimate reliance interests of immigrants, their families, employers, and communities. People make life-changing decisions based on existing immigration rules only to find those rules fundamentally altered, sometimes with little warning.
Finally, immigration law's unique structure creates problems of unequal accountability. Immigration agencies exercise extraordinary power over individuals who often have limited access to political representation or judicial recourse. Noncitizens cannot vote, limiting their political power to influence the policies that govern their lives. Courts apply deferential review standards that make it difficult to challenge agency actions successfully. The combination of broad agency discretion, limited judicial oversight, and constrained political accountability creates a system where agencies wield immense power with fewer checks and balances than exist in virtually any other area of American law.
Looking Ahead
Immigration rulemaking is structurally different from other areas of law because it does not fit comfortably within any single legal tradition. Instead, it operates as a hybrid regime shaped simultaneously by sovereignty-based constitutional doctrines that date to the nineteenth century, by foreign affairs imperatives that demand executive flexibility, and by administrative governance structures that grant broad discretion with limited procedural safeguards. This hybridity explains why immigration law tolerates broader delegations of power, weaker procedural protections, and greater executive dominance than characterize most domestic regulatory systems.
Understanding this structural distinctiveness is essential for anyone seeking to understand how immigration policy is actually made and implemented. The immigration system's unique legal architecture helps explain persistent debates over legitimacy, accountability, and the need for reform. It illuminates why immigration policy can change so rapidly and dramatically, why court challenges so often fail, and why immigrants and their advocates face such significant barriers to meaningful participation in shaping the rules that govern their lives.
These structural differences are not accidental or incidental features of immigration law. They reflect deep-rooted assumptions about national sovereignty, the nature of membership in political communities, the demands of national security, and the proper scope of executive power in foreign affairs. These assumptions have been built into immigration law over more than a century of legislation and judicial decisions, creating a legal framework that operates according to fundamentally different principles than most other areas of American law.
As we continue this blog series, we will turn from immigration law’s institutional structure to its constitutional foundations. In the next blog, we will unpack the principal clauses and doctrines the Supreme Court has relied on to ground federal immigration authority. We will examine how the Naturalization Clause has been interpreted to support federal control over who may formally join the national community, how the Commerce Clause has been invoked to regulate migration as part of broader economic and border-related powers, and how ideas of foreign affairs and national sovereignty have supplied additional, sometimes extra‑textual, justification for federal dominance in this field. We will also consider what the Constitution does not explicitly grant, probing the limits of enumerated powers and the tensions they create with more expansive theories of inherent sovereignty.
Understanding these constitutional sources is essential to any serious conversation about reform. Only by seeing how immigration power has been read into, and sometimes beyond, the constitutional text can we assess whether the current framework appropriately balances federal authority, individual rights, and structural checks.
This is Part 1 of our series on Immigration Law Foundations. In Part 2, we will explore the Constitutional Sources of Federal Immigration Power, with a focus on the Naturalization Clause, the Commerce Clause, foreign affairs and sovereignty, and the spaces where the Constitution remains silent.