Executive Actions Cannot Fix the Nation’s Broken Immigration System–Congress Needs to Legislate

By declaring an “invasion” at the U.S.-Mexico border and swiftly deporting non-citizens with little to no due process, President Donald Trump has quickly reshaped U.S. immigration policy to advance his goal of mass deportations. He has directed agencies from the Internal Revenue Service (IRS) to the Social Security Administration (SSA) to aid in a whole of government approach to immigration enforcement. In the process, not only non-citizens, but in some cases, U.S. citizens, have been mistakenly arrested, and attorneys and judges threatened, raising major concerns about the rights of non-citizens and the native born alike.

Less well understood is the fact that Trump’s executive actions on immigration have not addressed the critical, systemic problems that generated support for these policies in the first place. Especially during former President Joe Biden’s term, but also during the first Trump administration, high unauthorized arrivals overwhelmed border agents and U.S. communities strained to receive non-citizens without federal support. Many sought entry at the border and applied for asylum because it is one of the few lawful pathways into the United States, leading to a backlog of almost 3.3 million pending asylum applications as of March 2025. Meanwhile, businesses have not been able to recruit the talent they seek due to inflexible visa quotas and byzantine processes. 

The U.S. immigration system remains outdated, overwhelmed, and under-resourced because only Congress can update U.S. immigration laws, many of which have not been changed since the 1980s and 90s. Modernizing the U.S. immigration system would benefit U.S. citizens and immigrants alike since the current system does not work well for anyone. A reset is overdue. 

Congressional Inaction Spurs Executive Activism

To begin his second term in office, Trump announced executive actions on immigration at a record pace, many of them pushing the boundaries of U.S. laws and international treaties. In particular, his use of the Alien Enemies Act to quickly remove Venezuelans to a prison in El Salvador, and the arrests of international students have led some to characterize Trump’s moves as a “haphazard” erosion of immigrants’ rights. The administration’s actions have also gone much further than anticipated, affecting both legal and unauthorized immigration. For instance, Trump seeks to restrict birthright citizenship through an executive order, despite most legal scholars’ belief that a constitutional amendment would be required (courts have blocked the executive order to date). Immigrant advocates and Democrat attorneys general have brought lawsuits to slow or stop many of these moves, but it could take months to years for courts to reach final decisions on the legality of the administration’s policies. 

While these measures have raised significant alarm about respect for the rule of law, they also reflect the urgent need for reform of the U.S. immigration system. In the absence of congressional action, the executive branch has increasingly wielded authority on immigration. Successive administrations have issued record numbers of new policies, only for many of them to be blocked by the courts or reversed by the next administration. In many ways, these executive actions have functioned as band-aids–temporary fixes for long standing problems, especially at the U.S.-Mexico border, where officials struggled in recent years to keep up with the arrival of more diverse flows than ever before.

Under Trump and administrations before him, executive actions have not updated the most fundamental aspects of the U.S. immigration system—visa levels set in the 1990s, and border and asylum systems designed for handling much smaller numbers of cases. Only Congress can make such changes. Consequently, the components of the U.S. immigration system do not work well together as a system. The enforcement agencies, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) receive billions of dollars each year to arrest, detain, and deport noncitizens, while the immigration courts and U.S. Citizenship and Immigration Services (USCIS) receive far less to adjudicate deportation and asylum cases. Therefore, the courts and USCIS struggle each year to keep up with the huge volume of new cases filed, resulting in backlogs that incentivize more border arrivals, and keep those in need of protection from receiving it. 

Congress’ Role

Politicians have often asserted that immigration reform can only happen when the U.S.-Mexico border is “secure,” i.e. when arrival numbers are low. In March 2025, U.S. Border Patrol apprehended about 7,000 migrants at the southwest border, the lowest number in at least twenty-five years, when monthly reporting began. As Congress negotiates a new government funding package, which could include tens of billions of dollars in increases for immigration enforcement, the relatively quiet border may provide lawmakers the space to also update immigration laws. In fact, the first bill that Congress passed in 2025 was an immigration one, the Laken Riley Act, which focused on the detention of noncitizens accused or charged with committing certain crimes. The Act was the first major standalone immigration bill passed in nineteen years, demonstrating lawmakers’ interest in the issue. But larger scale reform would need to cover much more politicized issues such as asylum and deportations, among others.

Despite the failure of several proposals in recent years, a bipartisan group of lawmakers have continued to call for immigration reform, identifying the Trump administration’s need for enforcement funds as a potential opening to discuss changes. Building on past bipartisan efforts, Representative Tom Suozzi, a Democrat from New York, and several Republican representatives have sought to bundle together previously negotiated immigration bills to address southwest border arrivals, speed up asylum determinations, and update employment based immigration. While far from perfect, if passed, these proposals could help prevent some of the issues that arose under past administrations—high unauthorized arrivals and border chaos, which led to decreased public support for immigration, and increased support for restrictions.

For any package to succeed, it is imperative that lawmakers reset the system so that immigration officials can look forward, not backward, and quickly adjudicate new cases. Working through the current backlog of almost four million pending deportation cases while trying to quickly process new ones is a daunting task, even with a large infusion of new funds anticipated. In 2023, the Congressional Research Service projected that it would take double the number of immigration judges—up from about 649 to 1,349—to work through the immigration court backlog in a decade. That is because it takes time to hire new staff and train them, and almost half of pending cases involve complex asylum claims. In the meantime, new deportation cases continue to be filed—even though border arrivals have decreased, the immigration courts are receiving cases of noncitizens arrested in the U.S. interior. Still, establishing a system that is both fair and fast is critical to ensuring that those who are in need of protection receive it, and those who are ineligible are deported. 

Legalization for some portion of the long-term unauthorized immigrant population would be a key element of reform. There were an estimated 13.7 million unauthorized immigrants in the United States as of mid-2023, most of whom have lived in the country for more than a decade. Not only is legalization long overdue because of the long standing community ties and contributions of the unauthorized population, but also because legalization was an essential aspect of past successful reforms. In the 1990s, the Nicaraguan Adjustment and Central American Relief Act (NACARA) provided the opportunity for 405,000 unauthorized immigrants to adjust to lawful permanent resident status, allowing immigration officials to focus their attention on quickly adjudicating new asylum cases.

In addition to updating U.S. immigration laws, members of Congress have an obligation to monitor the Trump administration’s immigration actions, including its use of funds. As the branch of government charged with oversight of the executive, Congress should assess the president’s actions under the existing legal framework, and its compliance with court orders. By holding hearings on important topics such as the targeting of Spanish speakers and Latinos for arrest, which has resulted in the mistaken arrest of U.S. citizens in Florida, New Jersey, and Virginia, Congress can highlight equal protection and due process violations. Congress should also require detailed reporting on the use of funds for immigration enforcement and their effects, since congressionally mandated data provide an important window into government actions. Finally, Congress can provide funding for practices that protect and uphold the rights of noncitizens and U.S. citizens, such as access to legal counsel.