The Constitution grants the Congress the power to control immigration, not the President.
http://hrlibrary.umn.edu/immigrationlaw/chapter2.html<snip>
§ 2-1.1 The Commerce Clause
In the earliest cases, the Court looked to the federal power over foreign commerce. The Commerce Clause in Article I, § 8, clause 3, of the United States Constitution provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States." The Supreme Court in the Passenger Cases (Sup.Ct.1849) invoked the Commerce Clause to ban the levy of fees upon foreigners wishing to disembark at state ports. The Court invalidated state immigration fees even though Congress had yet to implement any relevant federal regulations. The Court reasoned that Congress exclusively controlled foreign affairs and foreign commerce even when the power had not been exercised. In the Head Money Cases (Sup.Ct.1884), the Court upheld a federally imposed tax on foreign immigrants, again with direct citation to the commerce power. As congressional action began to reach beyond taxation to other forms of regulation, however, the Court sought a broader ground for decision.
§ 2-1.2 Other Constitutional Provisions
Early cases also cite other specific constitutional provisions to support the inference that the federal government possesses complete power over international relations, arguably including immigration matters. In addition to citing the foreign commerce power, the Supreme Court in Nishimura Ekiu v. United States (Sup.Ct.1892) cites the power to establish a uniform rule of naturalization; the power to declare war, and to provide and maintain armies and navies; and the power to make all laws necessary and proper. The Fong Yue Ting v. United States (Sup.Ct.1893) case adds the power to define and punish piracies, felonies committed on the high seas, and offenses against the law of nations; as well as the presidential power to make treaties, to appoint ambassadors, and to select other public ministers and consuls.
The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has also been considered a potential grant of power to Congress. This clause provides: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight....” The specific limit on congressional power before 1808 could be construed to imply that after 1808, Congress would have power over migration and importation. The prevailing interpretation, however, is that this clause was simply intended to bar any attempts by Congress to stop the slave trade before 1808.
The War Power, found in Article I, § 8, clause 11, could be cited as a potential source of federal control over immigration. The War Power gives Congress the authority to "declare war." The War Power authorized the exclusion and expulsion of enemy aliens. In the Alien and Sedition Acts, for example, Congress granted this power to the President. The Supreme Court upheld the constitutionality of such provisions in Ludecke v. Watkins (Sup.Ct.1948), but it is difficult to stretch this rationale to cover the myriad of immigration provisions not apparently related to national security.
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§ 2-3.3 The Executive
As in other areas of the law, the function of executive agencies in the field of immigration is to enforce the legislation passed by Congress. The structure of the federal executive agencies that administer and enforce the immigration laws is discussed in chapter 3. Once Congress determines which classes of non-citizens will be denied admission or removed, the executive decides who fits within each class. Since the executive has no inherent power over immigration, it must stay within the grant of authority defined by the statute. Any unauthorized executive decisions are illegal and the courts may overturn them. Mahler v. Eby (Sup.Ct.1924).
Congress need not give the agencies detailed direction. The courts have not hesitated to uphold broad delegations of power to the enforcement agency. Jay v. Boyd (Sup.Ct.1956). In general, Congress need only delineate basic policy. Agencies then have relatively free rein in creating procedures to implement, administer, and enforce the immigration laws. Congress may also make the executive decisions final, thereby precluding review by the courts of agency factual findings. IIRIRA, for example, stripped the courts of jurisdiction to review any individual determination which arose from or is related to summary removal under INA § 235(b)(1). INA § 242(a)(2)(A)(i). The courts are also precluded from reviewing any decision by the Attorney General to invoke the summary removal provisions. INA § 242(a)(2)(A)(ii). The application of summary removal to individual non-citizens, including the determination of a non-citizen's credible fear, is also not subject to judicial review. INA § 242(a)(2)(A)(iii). In addition, IIRIRA bars judicial review of procedures and policies adopted by the Attorney General to implement the summary removal provisions of INA § 235(b)(1). INA § 242(a)(2)(A)(iv). Courts have interpreted these limitations on judicial review narrowly. See § 9-4.3, infra.
In 1983, an issue surfaced concerning the division of power between the executive and legislative branches that pertained to deportation procedures. Congress had reserved the power of one house of Congress to veto any individual decision by the INS to suspend deportation (now "cancel removal"
. See § 9-3, infra for a discussion of cancellation of removal. The House of Representatives exercised this veto in the case of an East Indian from Kenya who was thus to be deported, and challenged the congressional action as a violation of constitutional separation of powers. The Supreme Court held in the landmark decision of INS v. Chadha (Sup.Ct.1983) that such legislative veto provisions violated the constitutional requirement that, before becoming law, all bills must pass both the House and the Senate, and be presented to and signed by the President.
Finally, Congress may not give the executive the power to impose punishment for crimes. The courts alone may exercise this power and the procedures must comply with the constitutional requirements for all criminal prosecutions. Deportation (now "removal" is not considered criminal punishment, however, even when triggered by illegal acts.