How Executive Orders Shape U.S. Immigration Policy

On his first day in office, President Donald Trump signed 26 executive orders — more than any modern president. A number of those were related to immigration policy, including orders to suspend the U.S. refugee admissions program, designate certain cartel gangs as foreign terrorist groups and cut federal funds from sanctuary jurisdictions that refuse to cooperate with immigration enforcement operations.

Some of those orders took effect instantly and had immediate impacts on the lives of asylum seekers and refugees, such as the suspension of the CBP One app for asylum seekers at the border and the cancellation of flights for Afghan refugees who were previously cleared by immigration officials.

Other executive orders, including his attempt to deny birthright citizenship to children of parents without legal status, have faced several legal challenges that have stopped them from taking effect.

Amid the slew of executive orders, Borderless spoke to Colleen Putzel-Kavanaugh of the Migration Policy Institute (MPI) to explain executive orders, their limitations and the implications of using them to handle immigration policy.

Colleen Putzel-Kavanaugh is an associate policy analyst with MPI’s U.S. Immigration Policy Program. MPI is an independent, nonpartisan think tank that conducts research and analysis on immigration policy.

This interview has been edited for length and clarity.

Borderless: What is an executive order?

Colleen Putzel-Kavanaugh: An executive order is an order given by the President to implement some sort of policy; it’s a policy directive. They function similarly to a law in that they need to be followed — but they don’t go through Congress, which leaves them wide open to litigation. That’s why we’ve seen so much back and forth with immigration policy via executive order. They could be in place, be litigated and then not be in place anymore.

When does an executive order take effect? And does it happen immediately after one is issued?

It depends on the order. Sometimes, an executive order gives a directive to take effect in a certain number of days. Sometimes, it would be effective immediately. Sometimes, an executive order sets up for something else.

Is it common for a President to use executive orders to change immigration policy and why?

Executive orders have played a huge part in immigration policy, particularly in the last 30 years. Up until recently, when Congress passed the Laken Riley Act, Congress hadn’t passed an immigration bill in about 30 years. Immigration bills typically died in Congress or didn’t get signed by the president. What that meant was that nothing actually changed within immigration policy unless it happened via executive order.

In light of the recent passage of the Laken Riley Act, it’s really hard to know if that trend will continue. Will this Congress be more open to passing immigration legislation?

To what extent can executive orders change immigration policy? What are some other limitations to enacting executive orders?

We’ve heard about the Trump administration wanting to enact a mass deportation campaign. The executive orders that have been signed lay some groundwork for such an effort, but many of the directives include things such as “ICE needs to expand its detention capacity,” or “X number of agents need to be hired.”

While those are directives, they’re not always easy to implement because of the operational realities on the ground. Part of the limitation of executive orders is resources because they don’t come with any additional funding for these agencies to carry out their directives.

Not only are there operational challenges, but executive orders can mean that immigration agencies are spread very thin. It can throw sand in the gears of all of these different operations that need to happen all at once.

However, we are seeing more and more guidance being issued to different agencies after executive orders are signed. That matters because executive orders say really, really big ideas — but the nitty-gritty of how to actually enact an executive order often comes in the guidance to agencies that follows.

Have there been any long-term impacts on immigration policy that stem from an executive order? If so, what are some examples you can share?

A lot of border measures might have a decrease in irregular border arrivals for a couple of months, and then it would go back up again. However, the Secure the Border rule that happened in June [under President Joe Biden], coupled with different options for people to migrate more regularly as well as increased enforcement from countries like Mexico or Panama, all came together to see this reduction in border arrivals.

Biden’s executive order to limit asylum at the border lived on past the end of his term. Is that common? Or is it more common for presidents — as Trump did in his first week in office — to rewrite and rescind executive orders issued in a previous administration? That is, do executive orders often change between presidential terms?

We’ve seen a lot of flip-flop. One example is the interior guidance for ICE about who should be the top priorities for ICE for removal. Under Trump, essentially everyone and functionally anyone who had a removal order or who was in the country unauthorized was prioritized. Under the Biden administration, we saw those priorities narrowed, but now those policies have been rescinded, and we’re back to functionally targeting everyone who could be subject to removal.

But then we’ve seen other rules have durability, like the “Remain in Mexico” program.

In his first term, Trump only signed one executive order on his first day in office. This time around, Trump signed 26 executive orders on his first day, more than any modern president. How would you compare Trump’s week one approach to immigration this term versus his previous term? 

The Trump administration is coming into its second term with both the benefit of time and hindsight, having had four years to prepare and know what worked and didn’t work previously.

Many of his executive orders are already facing challenges, as they did in his first term, and may continue to face challenges, but we also see this combination that we didn’t see before: It’s not just a lot of orders; It’s a package of orders coming together to potentially change a lot of pieces of the immigration system as we currently know it.

In the first term, they ordered a ban on travel from certain countries right away, and that was instantly litigated. This time, the executive order calls for reporting back to see if a travel ban is necessary for certain countries, so it’s somewhat enhanced.

Some of his newly signed executive orders, like birthright citizenship, face legal challenges. What comes next? 

It really depends on each different case. What’s also complicated is that there are often multiple cases against one of the executive orders. The birthright citizenship order, for example, has several different legal cases, so the lifetime of each of those cases may be different.

The next steps would be to determine whether this is prohibited from going into effect or if it will still go into effect in some way.

Is there anything else readers should understand as they hear more about executive orders?

We’re seeing a litany of things coming out right now, both executive charters and rules published in the federal register and guidance to the agencies on carrying out these directives. I think that creates so much confusion and fear for people. Communities around the country are already really experiencing a chilling effect because of these.

An executive order is a messaging tactic as much as it is a policy tactic. So, I always remind myself that executive orders are really important to pay attention to but are not necessarily something that will have immediate impacts because of all of the hurdles for those things to be put in place.

This is just a reminder that fear, shock and awe are part of the tactic as much as changing policy on the ground is.

Katrina Pham is Borderless Magazine’s audience engagement reporter. Email Katrina at katrina@borderlessmag.org.

Aydali Campa is a Report for America corps member and covers environmental justice and immigrant communities for Borderless Magazine. Send her an email at aydali@borderlessmag.org