The last several years have created high levels of stress and fear for many immigrants in the U.S. At times, it has seemed that nearly every week a new announcement was made that adversely impacted immigrants – from Dreamers to refugees – and put their futures in jeopardy. Even a late-night presidential tweet could send shock waves of fear across the country.
While the president of the United States holds considerable power, it is important to bear in mind that their power is neither unlimited nor unchecked. A president’s word is not law. Therefore, it may be worthwhile to examine the legal difference between different types of government orders.
Statute
A statute is an official law. In the hierarchy of orders that the government creates, statutes are at the top. The Immigration and Nationality Act is one of the key immigration statutes.
Congress must follow the Constitution in making all statutes. If a statute – or its application – is believed to be unconstitutional, it can be challenged in court.
Regulation
A regulation is an official rule. While a statute outlines the contents of a law, regulations dictate the terms under which the law must be applied. When the government creates regulations, they must adhere to the Administrative Procedure Act (APA). All regulations are published in the Code of Federal Regulations – each categorized under the federal agency to which it applies. With respect to immigration law, most of the relevant regulations are published under Titles 8, 20 and 22 – which cover the Department of Homeland Security, the Department of Labor and the Department of State respectively.
A regulation can be challenged in court under any of the following circumstances:
- It fails to follow the APA.
- It exceeds the scope of the statute.
- It is unconstitutional.
Policy memo
A policy memo is an official announcement from a government agency, which provides guidelines as to how statutes and regulations will be carried out. Policy memos carry no legal power on their own. They must adhere to the terms of the regulations and statutes to which they apply.
A policy memo can be challenged in court in any of these cases:
- It exceeds the scope of applicable statutes or regulations.
- It is unconstitutional in either written form or in practical application.
Tweet
A tweet is an unofficial announcement on Twitter. It carries no legal power. Unlike policy memos, tweets do not undergo any formal vetting process before they are released to the public. Nonetheless, a government official still has certain responsibilities when making policy announcements via Twitter (or other social media). A government official cannot simply post a tweet as a means of creating a new law, right or obligation. The official processes outlined above must still be followed.
A tweet can be challenged in court for any of these reasons:
- It exceeds the scope of applicable statutes or regulations.
- It is unconstitutional in either written form or in practical application.
The process of coming to – and staying in – the U.S. is often challenging. In these uncertain times, having a foundational understanding of how different government orders impact you can help to ease some fears.
