Immigration in the United States Essay


Role of Branches on Immigration


Both in proportion to its population and in terms of total numbers, The United States of America is the leading country in incoming refugees. The total number of refugees that arrive in the United States is larger compared to the rest of the world combined. The most basic definition of a refugee is an individual that is out of the country of citizenship and hesitant or reluctant to go back and live there. This unwillingness is often caused by poverty and low standards of life or oppression due to race, religion, ethnicity, or political opinion. The policy of the U.S. on immigration has been discussed, opposed, and modified many times. Throughout this paper, the role of the three branches of federal authority in this area will be addressed. In parallel with this, checks and balances system, along with the separation of powers, will be analyzed.

Keywords: Separation, Power, Government, Immigration, Role


The cornerstone of the modern democracies is the separation of powers. Separation of power, along with the Checks and Balances, helps to keep the democracy on the rail. “The Constitution creates a government of enumerated powers, and it delegates to Congress the power to establish a uniform Rule of Naturalization, throughout the United States” (Wilkinson, 2020; Sweet & Ryan, 2018). However, although the Constitution appoints the Congress to duty to determine who can become a citizen of the U.S. and under what circumstances this can happen, it does not draw clear lines on immigration. Consequently, the Federal Government is not entitled to power without question by all means to deport noncitizens from the United States. Nevertheless, the Federal Government has been allowed by the courts to use such power in particular cases. “At various points in time (and in various Supreme Court cases), this power over immigration has been said to derive from various legal standings” (Frank, 2016; Turner, 2018). “The Commerce Clause, the Naturalization Clause, the Declaration of War Clause, the Law of Nations Clause, and the Necessary and Proper Clause, among others” (Frank, 2016; Jerry, 1996) can be listed as such limited cases.

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Separation of Powers

The idea of “Separation of Powers” was invented by the French philosopher Montesquieu in the 18th-century. In such as regulative system, as its name indicates, the governmental power is divided into different branches, where each of these branches has independent powers. Through adjusting collective branches of executive power to equal power and giving them self-dependence, the system aims to ensure the preservation of representative democracy and avoid monopoly. Three branches that take place in the separation of powers are the Judicial Branch, the Legislative Branch, and the Executive Branch.

The forty states and Federal Government divide their regulative powers into these three branches in the U.S. (Wilkinson, 2020). “In the Federal Government, Article 1 of the United States Constitution establishes the Legislation, which consists of Congress,” and which is responsible for creating laws in addition to other enumerated responsibilities (Wilkinson, 2020; Marks, 2019). The delegation system that makes up Congress entitles the Legislation to its lawmaking functions. Congress can, however, “provide agencies with regulatory guidelines if it provides them with an -intelligible principle- to base their regulations on” (Wilkinson, 2020). Moreover, the President is assigned to approve and perform the laws created by Congress, as mentioned above, the Legislative Branch.

Separation of Powers in the United States highly relies on the Checks and Balances system. “The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful” (Derek, 1980). For instance, the laws created by Congress could be vetoed by the Executvive President or declared against the Constitution by the Supreme Court. In addition, the two houses of Congress, which are the House of Representatives and the Senate, can override a Presidential veto with a total of 2/3 of votes.

Check and Balance System

The Checks and Balances System also enables the branches to some power to appoint or remove members from the other branches, in order to strengthen the check mechanism (Wilkinson, 2020; Perry, 1995). President is responsible to Congress and the Supreme Court. Congress could call the President into question and proven guilty in case of high crimes, such as bribery or treachery. A balance and measure is provided through the system, plus invalidating law. That is, each branch has control over each other. More specifically, the President can be impeached by the House of Representatives, also the President can be removed and convicted by the Senate. Moreover, House of Representatives and Senate can remove Judges.

Legislative Branch

Immigration could be listed as the top controversy amongst Americans today. Based on our Founding documents, what could be said on immigration policy? How is the power of three separate powers of Government allocated over immigration? The Declaration of Independence actually has a direct saying on the issue of immigration. An important point for the founders on this issue was the policies applied by King George against the immigrants in order to hinder the population of states by setting back the Laws for Naturalization of Foreigners and refusing others to discourage migration. Immigration became a minor issue after the Declaration of Independence was signed, and the Constitution was set as the law of the land more than a decade after. Immigration is mentioned migration of foreign once in the Constitution. Congress had no power to limit the migration of slaves until 1808—it is silent about limiting any other migration, although it gives Congress the power to create a uniform rule of naturalization (Grant, 2016; Toll, 2017) .

Executive Branch

In later times while the Constitution was taking shape, the role of the Supreme Court evolved, and it took a more active role in determining the way the immigration power would be distributed between the branches (Anker, 2000). Finally, the most powerful role was assigned to Congress and the executive branch.

Much later in time, while Barack Obama was the President, despite the Constitution not stating that Congress had the power to create immigration laws unless they are discriminatory or unfair, he used the power that was given to him by Congress. He was criticized by all political sides for what he had done, and his act recalled an older president of Democrats, Franklin Delano Roosevelt. Back in his time, the Supreme Court dissipated non-delegation doctrine to let Congress all power to the President. Moreover, some other acts of President Obama, such as keeping refugees from Central America in detention camps, were compared to the acts of President Roosevelt as he, as well, applied detention to the Japanese refugees in his time. The power of the executive branch on immigration issues has always been discussed and changed in time, as it was considered overpowered occasionally. Still being obscure, it is for sure that the executive branch should have a saying in the immigration issue, but the balance of the amount of power is a fragile line.

Judicial Branch

The power of the judicial branch is quite critical on the immigration issue, as it always is on any issue. However, today the judicial branch has lesser power of impact compared to the President due to again two judicially-created developments in the past. These are the plenary power doctrine, and the doctrine that Congress may delegate its power to the President—the Executive Branch today enjoys expansive power over immigration (Grant, 2016). In other words, one can readily infer that the Executive branch has the utmost power when it comes to refugee and immigration policies.


In the end, there is a slight unbalance of power between three branches, which was caused by the acts of the Supreme Court and the past Presidents. As their predecessors exercise the same power in years, the unbalance has survived until this day. It may seem unnatural and maybe even unconstitutional to an outside observer that this unbalance has occurred and still going on. The balance of the three branches could be concluded as the legislative branch has about the amount of power it has to have where the executive branch, the President, is more dominant than it should be, and the judicial branch is less active than it should have been.


Anker, T. (2000). History of Immigration. New York: Columbia University Press

Derek, K. (1980). Foundations of Law and Government. New Jersey: Wiley-Blackwell

Frank, D. (2016). Court and Immigration. New York: Wiley.

Grant, G. (2016). Legislative Roles. New York: Wiley

Jerry, F. (1996). Roles of Branches in Democracy. Oxford: Oxford University Press.

Marks, S. (2019). A False Tree of Liberty. Oxford: Oxford University Press.

Perry, K. (1995). Change in Power. Oxford: Oxford University Press.

Sweet, A. S., Ryan, C. (2018). A Cosmopolitan Legal Order. Oxford: Oxford University Press.

Toll, A. (2017). Separation of Powers. Legal Law Institute. Pages 3-6.

Turner, F. (2018) History of the Constitution. New Haven: Yale University Press.

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