Two new analyses by Center for Immigration Studies Senior Legal Fellow George Fishman conclude that a recent court ruling correctly reaffirms a fundamental constitutional principle: Congress, not the executive branch, writes the nation’s immigration laws.
In “On Asylum, the Legislature Needs to Legislate” and “Does a President Have the Constitutional Power to Remove Aliens, Even in Violation of Federal Law?”, Fishman examines the D.C. Circuit Court of Appeals’ decision in Refugee and Immigrant Center for Education and Legal Services v. Mullin (RICELS), which invalidated portions of President Trump’s 2025 proclamation restricting asylum claims and establishing new removal procedures.
“The court reached the correct conclusion”, said Fishman. “The Constitution gives Congress the power to establish our immigration laws, and neither presidents nor courts are free to rewrite them. If current asylum and removal laws are inadequate to address illegal immigration, as they most assuredly are, the remedy lies with Congress.”
Key findings include:
- The Immigration and Nationality Act (INA) gives aliens physically present in the United States the statutory right to apply for asylum, regardless of how they entered.
- Congress created specific procedures governing removal which must be adhered to.
- The president’s Section 212(f) power allows him to suspend the entry of aliens, not to remove those already here.
- Supreme Court precedent consistently recognizes Congress’s primary constitutional authority over immigration policy.
- Even if a president possesses some inherent constitutional authority over immigration matters, that authority remains subordinate to duly enacted federal statutes.
Fishman argues that while the D.C. Circuit’s decision may frustrate those seeking stronger border enforcement, it faithfully applies the immigration laws Congress enacted. The responsibility for fixing glaring vulnerabilities in the asylum system ultimately rests with lawmakers.
Links:
Does a President Have the Constitutional Power to Remove Aliens, Even in Violation of Federal Law?
On Asylum, the Legislature Needs to Legislate
DC Circuit Rightly Pins Blame on America’s Insane Asylum System on Congress