Federal Judges Step into the Void to Set U.S. Immigration Policy

As the legislative branch of the federal government remains paralyzed on immigration policy, the executive branch can only take temporary administrative actions in this area – actions which can be overturned by subsequent administrations. This situation leaves the judicial branch with the power to intervene in immigration-related matters if judges feel that the executive branch has exceeded its authority. In a paper by the Migration Policy Institute entitled “Federal Judges Step into the Void to Set U.S. Immigration Policy,” the authors discuss the consequences of judicial activism in the immigration area. In recent years, state politicians have taken to the courts to challenge executive decisions on immigration, using the courts to influence national priorities and promote partisan interests. The greatest effect of this shift has been on immigrants themselves. For instance, 590,000 DACA recipients are facing the loss of their work authorization due to a 2021 ruling by a federal district judge in Texas. The authors suggest that the struggle between federal and state governments for control over immigration policy has its roots in American history, with courts generally having favored the federal government in the past. The change to state-fueled and privately funded immigration litigation began under the Obama administration, when polarization around immigration intensified.

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