Immigration and Citizenship: who decides

Authority over immigration and citizenship in the United States sits mainly with the federal government: the Constitution gives Congress the power “to establish a uniform rule of naturalization,” and the Supreme Court has described the national government’s “broad, undoubted power over immigration and alien status”.⁠^1,4 States, counties, cities and school districts still make important decisions about licenses, schools, policing cooperation and voter verification, within limits the courts have drawn.

In plain words

Congress makes the rules about who can come, who can stay and who can become a citizen. The President and federal agencies carry out those rules, and they have a lot of room to choose whom to focus on. Federal judges decide when someone has gone too far.

States cannot make their own immigration laws. But states decide things like who can get a driver’s license, and cities decide how much their police help federal immigration officers. Public schools must teach children no matter their immigration status.

Only citizens can vote in federal elections. This page shows who decides what, with the law behind each step. The companion pages cover what the public prioritizes and what the evidence shows.

Defined terms

Plenary power. The courts’ description of Congress’s and the national government’s broad authority over admission and exclusion of noncitizens.

Preemption. The rule that valid federal law overrides conflicting state law, either expressly or because state law stands as an obstacle to federal purposes.

Enforcement discretion. The executive branch’s choice of whom to arrest, detain and remove, given limited resources.

287(g) agreement. A written agreement under 8 U.S.C. 1357(g) letting trained state or local officers perform certain immigration officer functions.⁠⁸

Anti-commandeering. The constitutional rule that the federal government may not order state or local officers to enforce a federal regulatory program.⁠¹⁰

Cooperation (or “sanctuary”) policy. A state or local rule about how far local agencies assist federal immigration enforcement. The label is contested; supporters and critics describe the same policy in different words.

Immigration court. The Executive Office for Immigration Review, part of the U.S. Department of Justice, which hears removal cases. It is an executive agency, not part of the federal judiciary.

Federal authority: Congress

Congress holds the lead role in immigration and citizenship law. Article I, Section 8 gives it power “to establish a uniform rule of naturalization”.⁠¹ The Supreme Court in Arizona v. United States (2012) described the federal government’s “broad, undoubted power over immigration and alien status,” resting in part on that clause.⁠⁴

Congress has used that power to write the Immigration and Nationality Act, codified in Title 8 of the U.S. Code. It sets annual numerical levels for permanent immigration, including a family-sponsored floor of 226,000, an employment-based base of 140,000 and 55,000 diversity visas, while exempting immediate relatives of citizens from the caps.⁠²² It sets the requirements for naturalization: generally five years of continuous residence after becoming a lawful permanent resident, physical presence for at least half that time, and good moral character, being “attached to the principles of the Constitution of the United States”.⁠¹⁷ It makes it unlawful to hire a person “knowing the alien is an unauthorized alien”.⁠¹³ And it grants the right to apply for asylum to a person “physically present in the United States or who arrives in the United States,” “irrespective of such alien’s status”.⁠¹⁹

Congress also writes the citizenship statute. Under 8 U.S.C. 1401(a), persons “born in the United States, and subject to the jurisdiction thereof” are citizens at birth, language that mirrors the Fourteenth Amendment.⁠⁷

Federal authority: the President and agencies

The executive branch administers immigration and citizenship law and has wide room for judgment. Federal law charges the Secretary of Homeland Security “with the administration and enforcement” of the immigration laws, except for powers given to the President, the Attorney General and the Secretary of State.⁠³ Within DHS, separate components handle the border, interior enforcement and benefit applications such as naturalization.

Entry restrictions. In Trump v. Hawaii (2018), the Supreme Court upheld a presidential proclamation restricting entry, saying the statute at 8 U.S.C. 1182(f) “exudes deference to the President in every clause”.⁠⁵

Refugee numbers. The annual refugee ceiling is set by the President after consultation with Congress, at a number “justified by humanitarian concerns or is otherwise in the national interest”.⁠¹⁸ The ceiling has varied widely: up to 125,000 for fiscal year 2024 under a determination signed September 29, 2023,⁠²⁰ and up to 17,500 for fiscal year 2027 under a determination signed September 25, 2026, allocated primarily to Afrikaners from South Africa.⁠²¹

Enforcement priorities. In United States v. Texas (2023), the Court held that Texas and Louisiana lacked standing to challenge federal enforcement guidelines, noting that the executive branch “invariably lacks the resources to arrest and prosecute every violator of every law”.⁠⁶ Priorities can therefore change substantially from one administration to the next without new legislation.

Naturalization tests. USCIS administers the civics and English tests. For applications filed on or after October 20, 2025, applicants must answer at least 12 of 20 civics questions drawn from a bank of 128.⁠¹⁶

Immigration courts. Removal cases go to the Executive Office for Immigration Review in the Department of Justice. In September 2025 it reported reducing its pending caseload from more than 4.18 million to under 3.75 million.⁠²³

The courts

Federal courts decide disputes over immigration and citizenship authority, and several recent rulings define the current boundaries.

• Federal versus state power. Arizona v. United States (2012) held three provisions of Arizona’s S.B. 1070 preempted: a state misdemeanor for failing to comply with federal alien registration requirements, a misdemeanor for an unauthorized immigrant to seek or engage in work, and warrantless arrest authority for removable offenses. It declined to block the provision requiring officers, in some circumstances, to make efforts to verify a person’s immigration status during a stop, before state courts could interpret it.⁠⁴
• Employer licensing. Chamber of Commerce v. Whiting (2011) upheld an Arizona law allowing suspension or revocation of business licenses for employing unauthorized workers, and its requirement that employers use E-Verify.⁠¹² The federal hiring statute expressly allows state sanctions “through licensing and similar laws”.⁠¹³
• Schooling. Plyler v. Doe (1982) held that Texas violated the Equal Protection Clause by denying state funds for, or enrollment of, children not legally admitted, stating that “an alien is surely a ‘person’ in any ordinary sense of that term”.⁠¹¹
• Birthright citizenship. Trump v. Barbara (decided June 30, 2026) held that “children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause”.⁠⁷ Chief Justice Roberts wrote for Justices Sotomayor, Kagan, Barrett and Jackson. Justice Kavanaugh concurred in the judgment on the statutory ground only, writing that Congress “could” amend 8 U.S.C. 1401(a) consistent with the Amendment; Justices Thomas, Alito and Gorsuch dissented.⁠⁷ Because the majority rested its holding on the Constitution, not only the statute, the rule cannot be changed by executive order or ordinary legislation; it would take a constitutional amendment.
• Asylum at the border. Mullin v. Al Otro Lado (decided June 25, 2026) held that a person standing in Mexico “arrives in the United States” only by crossing the border, so the statute does not entitle that person to apply for asylum or require inspection.⁠⁹

State authority

States have no power to set their own immigration rules, but they make many decisions that shape immigrants’ lives and federal enforcement.

What states cannot do. After Arizona, a state may not create its own immigration crimes or registration regime where federal law occupies the field or where the state law obstructs federal objectives.⁠⁴

What states can do. States may license businesses on condition of lawful hiring and require E-Verify.⁠¹² States decide who may hold a driver’s license. As of the National Conference of State Legislatures’ brief last updated March 13, 2023, 19 states and the District of Columbia allowed unauthorized immigrants to obtain licenses, and several mark these licenses as not valid for federal identification.⁠¹⁴

Cooperation choices. No state or locality is required to sign a 287(g) agreement,⁠⁸ and the anti-commandeering rule bars Congress from ordering state officers to administer a federal program.⁠¹⁰ At the same time, federal law says no government entity may “prohibit, or in any way restrict” another from sending or receiving information about a person’s “citizenship or immigration status”.⁠² How far local cooperation policies can go without violating that statute remains contested.

Fourteenth Amendment limits. State laws affecting noncitizens remain subject to the guarantee that no state shall “deny to any person within its jurisdiction the equal protection of the laws”.⁠²⁴

Local authority

Counties, cities, sheriffs and school districts make immigration-related decisions that rarely appear in national debate.

• Counties and sheriffs decide whether to enter 287(g) agreements, which the statute allows with “any political subdivision of a State”.⁠⁸
• Cities set police policies on whether officers ask about immigration status and how they respond to federal requests, within the information-sharing statute.⁠²
• School districts must enroll children regardless of immigration status under Plyler.⁠¹¹
• Local election offices maintain voter rolls and verify eligibility, discussed next.

Citizenship and voting eligibility

Citizenship determines eligibility in federal elections. Federal law makes it “unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate” for federal office, with a narrow exception for state or local contests that a state constitution, statute or local ordinance opens to noncitizens and that are conducted independently of federal voting.⁠¹⁵

Verifying citizenship on voter rolls is itself a federal and state question. In DHS v. League of Women Voters (September 25, 2026), the Supreme Court stayed a lower court order that had set aside DHS’s expanded SAVE program, which lets state and local agencies check registered voters’ citizenship against federal records including Social Security data.⁠²⁵ The Court said the plaintiffs likely had standing but that 8 U.S.C. 1373 likely authorized the information sharing; Justices Jackson, Sotomayor and Kagan dissented.⁠²⁵ The order is interim, pending appeal. For the framework’s treatment of eligibility, see identity and registration.

Evidence

Evidence on how immigration and citizenship authority is exercised shows large swings driven by executive choices rather than new statutes. The refugee ceiling fell from 125,000 for fiscal year 2024 to 17,500 for fiscal year 2027 by presidential determination.⁠^20,21 The immigration court caseload is managed by an executive agency that reports its own progress.⁠²³ State policy varies widely: fewer than half of the states had adopted driver’s licenses without proof of lawful presence as of 2023.⁠¹⁴ Data on numbers, flows and effects are on the evidence page.

Competing interpretations

Immigration and citizenship authority is read differently by people who agree on the facts.

Federal exclusivity versus state sovereignty. One view holds that a single national policy is necessary, because immigration touches foreign relations and states acting alone produce a patchwork. Another, expressed in Justice Scalia’s Arizona opinion, holds that “the authority to exclude was universally accepted as inherent in sovereignty,” including state sovereignty.⁠⁴

Executive discretion versus legislative mandate. Some argue that discretion is unavoidable and lets enforcement focus on serious threats.⁠⁶ Others argue that broad discretion lets each administration rewrite policy that Congress has not changed, whether by enforcing more or less.

Local cooperation as public safety or as federal overreach. Supporters of cooperation argue that local jails hold people the federal government seeks and that information sharing is required by law.⁠² Supporters of limits argue that local police depend on immigrant residents reporting crimes and that the Constitution forbids commandeering.⁠¹⁰

Who defines citizenship. The Barbara majority read the Citizenship Clause through the common law rule of birth on the soil; the dissents read it through allegiance or domicile.⁠⁷ The majority’s reading now controls.

Application to this framework

My Vote Forward’s proposals chapter requires every proposal to name the body with authority to adopt it. For immigration and citizenship that test is demanding.

1. Most proposals are federal. Changes to visa levels, asylum rules, naturalization requirements or refugee policy belong to Congress or the executive branch. A city or state cannot adopt them.
2. Some proposals are state or local. Driver’s license eligibility, E-Verify for state licensing, 287(g) participation and police cooperation rules are state or local choices, within federal limits.
3. Some proposals are closed. Under Barbara, ending birthright citizenship for children of unlawfully or temporarily present parents would require a constitutional amendment. A framework question should say so rather than imply a simpler path.
4. Eligibility is not the framework’s to decide. Voter eligibility is set by law and checked by election officials. See jurisdictions and identity and registration.

Unresolved questions

• How far can state and local cooperation limits go before they conflict with 8 U.S.C. 1373, and how will courts reconcile that statute with the anti-commandeering rule?
• Will the final appellate decision on the expanded SAVE program confirm the Supreme Court’s preliminary reading?
• Should Congress narrow or widen executive discretion over enforcement priorities and refugee ceilings, given how much both have varied?
• How should a civic tool present proposals that only a constitutional amendment could achieve?
• What role, if any, should states play in setting labor-driven admissions, as Canadian provinces do through nominations? See the subject page.