In the weeks since the November 4th election, El Tímpano has received dozens of questions from immigrant community members about what kinds of immigration policy changes to expect. President-Elect Donald Trump has promised sweeping changes to immigration beginning his first day in office, but what exactly he will do remains unclear.
Experts are more certain, however, about how he will make changes—by turning to the power of the executive branch.
Changes to our immigration system have relied on the president’s powers because Congress has not been able to enact meaningful immigration policies for at least 30 years. Presidential powers are limited and rules made under one administration often change under the next president. Immigration-related executive actions are also nearly always challenged in court.
The result is a confusing back-and-forth for the people most affected by changes to immigration policies.
“Everyone kind of agrees there’s some fundamental problems with our immigration system and how it’s working,” said Theresa Cardinal Brown, Senior Advisor for Immigration and Border Policy at the Bipartisan Policy Center (BPC), a nonprofit think tank. “In the absence of congressional legislation, presidents of both parties have taken it upon themselves to try to extend the use of what they think their executive authorities are in new ways.”
As Trump prepares to take office once more, experts agree that we can expect the pattern of executive actions on immigration—and the lawsuits that follow them—to continue. Here is what to remember about how quickly immigration policy will change beginning Jan. 20.
What is an executive action?
An executive action is a sweeping term for any official change coming from the White House. These can be executive orders or proclamations, for example.
President Barack Obama used executive authorities to create the Deferred Action for Childhood Arrivals (DACA) program, President Trump used them to redesign deportation proceedings at the U.S.-Mexico border during his first term and President Joe Biden used them to modernize immigration processing and expand protections from deportation to people from certain countries.
The use of executive actions has increased since Trump first took office. During his first term, Trump issued more than 400 immigration-related executive actions, which was at the time considered a record. President Biden issued more than 600, according to an analysis by the Migration Policy Institute (MPI), a bipartisan research organization.
MPI found that most of the executive actions by the Biden administration were related to modernizing and simplifying processes used by the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security that oversees legal immigration channels.
Several of Biden’s executive orders, however, changed or undid Trump’s earlier actions. Biden’s efforts to change Trump’s executive actions highlight how confusing this form of policy-making can become.
One example was Biden’s attempt to undo Trump’s Migrant Protection Protocols (MPP), a policy also known as “Remain in Mexico,” which required people to wait on the other side of the border while their asylum case made its way through the U.S. immigration court system. Biden’s move to end the policy was immediately challenged in court. As the case made its way through the court system, the policy was stopped and then reinstated several times, confusing the people at the border who were affected by the policy.
Because executive actions come from the White House and are not laws enacted by Congress, they are often challenged on the grounds that they are not within the President’s scope of authority. “Because so many policies have happened within the executive [branch]…we can almost always predict that any big change is going to be litigated,” said Colleen Putzel-Kavanaugh, associate policy analyst at MPI. “Because of that, you sort of have policies that start and stop, or that start but are still kind of tenuous because we don’t know how the litigation is going to turn out. And so it creates a lot of chaos and a lot of confusion.”
Will Trump’s executive actions on immigration be challenged in court?
Very likely, yes. “The only thing that has longevity and perpetuity in immigration is when Congress passes a law,” Cardinal Brown said. “Everything else is subordinate to that.”
During Trump’s first term in office, nearly all of his executive actions on immigration were legally challenged by organizations like the American Civil Liberties Union (ACLU) and state Attorneys General like former California AG Xavier Becerra.
When Biden took office, his immigration-related executive actions were challenged by conservative Attorneys General like Texas AG Ken Paxton and right-wing advocacy groups.
Now, California AG Rob Bonta and others are preparing to sue again once Trump begins issuing executive actions.
“Attorney General Bonta is committed to protecting, defending and enforcing the rights of California immigrants—and is ready to take action if the President-elect violates the law,” a spokesperson for Bonta said in a statement to El Tímpano. “Our office filed more than 120 lawsuits against the first Trump administration. We were largely successful in those challenges, and we’ll do it all over again if needed.”
The ACLU has issued similar public statements. “We are ready to take action the minute Trump takes the oath of office,” the organization wrote shortly after Trump won the November election. “When President Trump targets immigrants, dissidents and his political opponents—we will challenge him in the courts, at the state legislatures and in the streets.”
What does this mean for my immigration case?
It isn’t yet clear which immigration policies will change after Trump takes office, but immigrants should expect things to change quickly. Executive actions can be enacted immediately, but they can also be challenged in court just as quickly.
This could mean that a judge decides to temporarily pause a policy, or reinstate it, while the issue is being decided. For immigrants caught in this back-and-forth, it is best to stay up-to-date on the policies that impact you directly and turn to trusted and reliable sources to verify information about any changes.
What are the other ways immigration policy might change?
One thing that is different about Trump’s second term in office is that Republicans now hold a majority in Congress. This means that the representatives in office might be more willing to pass laws that are in line with Trump’s agenda.
Earlier this month, the House of Representatives voted to pass the Laken Riley Act, a bill that would require immigration officers to detain undocumented immigrants accused of theft of $100 or more and other minor crimes, and would grant state Attorneys General more authority to force the federal government to act on immigration policy. The bill passed the House with 48 Democrats in favor. The Senate has not yet voted on the bill.
Still, both Cardinal Brown and Putzel-Kavanaugh say it is too early to tell whether or not Congress could, after more than 30 years, pass immigration-related legislation because Republicans only hold a slim majority.
“This is the first bill that this Congress is introducing that is very much trying to make a statement,” Putzel-Kavanaugh said, adding that for Democrats, at least, “[It] shows a shift in the general willingness to take a more hardline approach on immigration.”
