Our discussion of immigration often focuses on matters of security, national identity, and humanitarian obligations. However, these debates take place within the institutions established by our Constitution. We operate through institutions that themselves stem from two legal systems, namely federalism and the separation of powers. Recent immigration news has shown the importance of both structures in our political debate. They also point to deep failures among the actors in these systems that plague any substantial attempts to deal with the matter.

We see federalism at play along the Texas border. Over the last two years, Gov. Greg Abbot (R-TX) has implemented a policy known as Operation Lone Star. Through it, the state has poured billions of dollars into its own immigration enforcement, including the recent addition of 1,000 feet of buoys placed in the Rio Grande to deter illegal crossings. This last action finally brought the threat of legal challenges from the Biden administration, which claims that buoys violate an 1899 law that prohibits the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.”

Under federalism, the people distribute their political power between one national and many state governments. The Constitution intends this distribution to limit the powers of both but also to make each more effective in carrying out the common task of protecting our citizens. In this division, the U.S. Constitution clearly gives most if not all foreign policy powers to the national government. Thus, the national government holds the primary role to enforce immigration law, because immigration ultimately involves interaction with foreign nations and persons from those nations.

Yet to what degree can states on an international border take their own actions? States do possess extensive authority, known as the police power, to protect health, safety, and order within their own borders. Immigration obviously affects those state duties in places such as Texas, Arizona, and California in pressing ways. States must possess and exercise some power to deter violent crime, drug and human trafficking, and other ills that mass illegal immigration includes.

We see separation of powers at play in a federal court ruling on Tuesday against the Biden administration’s new asylum policy. That policy, which replaced the pandemic “Title 42” approach, seeks to limit illegal immigration by presuming invalid the asylum claims of those who do not sign up for the process and then show up at standardized points of entry.

The case had little directly to do with the justice of the new policy. Instead, it pertained to whether the Biden administration followed immigration law in creating the presumption against asylum based on where the applicant crossed the border. The judge ruled against the new policy, writing that it contradicted clear statutory language on the matter.

Under the separation of powers, the functions of government, making law, enforcing it, and applying it to disputes, are separated out and given to distinct institutions. Congress creates statutes, the president enforces them, and judges interpret them in deciding legal controversies. The judge in this case argued he was merely enforcing this constitutional separation by demanding the executive not re-write congressionally-passed laws to suit his own preferences.

Both the national government in the federalism case and the judge in the separation of powers case have legitimate points about how our structures divide legitimate action between governments and governmental institutions. Yet these matters also point to the failures within the system to adequately address our immigration problems.

States seek to take immigration enforcement into their own hands due to the failure of the national government to adequately do so on its own. The executive branch tries to stretch old immigration laws in part when Congress has refused to do its job. The immigration laws being enforced are from 40 or 70 years ago or even longer. The immigration issue has changed drastically since then without adequate adjustment in the law.

Thus, we should not merely seek the right immigration policies. We also should conform the making and implementing of those policies to our systems of federalism and separation of powers. Putting the two together, we must hold the proper actors within that system accountable to do their job, so our governments work as the Founders intended.

Adam Carrington is an assistant professor of politics at Hillsdale College.