STATUTES vs. REGULATIONS vs. MEMOS vs. TWEETS IN IMMIGRATION LAW
How do we determine what is law, what is the government’s interpretation or application of a law, or what is just the government’s opinion? Consider the source.
- STATUTES: Laws Passed by a Legislature, Usually by Congress
Statutes are binding law and can create new rights or obligations. The Immigration and Nationality Act is a statute. Statutes may be challenged in court if they are unconstitutional, either as written or as applied by the government.
- REGULATIONS: Rules Setting Forth How the Government Will Apply Relevant Statutes
Regulations have the force of law. The government must follow the Administrative Procedure Act (APA) when making regulations. When a regulation is implemented, it is published in the Federal Register and given a section in the Code of Federal Regulations (CFR). Each federal agency is covered in a different chapter of the CFR. Most immigration regulations are found in chapters 8 (Department of Homeland Security), 20 (Department
of Labor), and 22 (Department of State) of the CFR. Regulations may be challenged if the government did not follow the APA. Regulations also may be challenged if they go beyond the scope of the statute (ultra vires), or if they are unconstitutional, either as written or as applied by the government.
- POLICY MEMOS: Announcements from a Government Agency that Set Its Policies and Provide Guidance as to How the Agency Will Apply Relevant Statutes and Regulations
Policy memos usually are vetted through the agency’s office of legal counsel and go through multiple rounds of review and revision before they are released to the public. Statutes and regulations are the boundaries for the
government’s policies, and the government cannot make new laws or create new rights or obligations through memos. While memos do not have the force of law, a court will give the agency wide deference in setting its policies. Policy memos may be challenged if they go beyond the scope of the relevant statutes and regulations (ultra vires), or if they are unconstitutional, either as written or as applied by the government.
- TWEETS: In Recent Years, the Government Has Made Numerous Policy Announcements on Twitter
Unlike statutes and regulations, Tweets do not have the force of law. Unlike policy memos, government tweets do not appear to go through a vetting process. Government policies announced via Tweet cannot go beyond the scope of the related statutes and regulations, and the government cannot make new laws or create new rights or obligations via Tweet. Policies announced on Twitter may be challenged in court if they go beyond the scope of the relevant
statutes and regulations (ultra vires), or if they are unconstitutional, either as written or as applied by the government. Occasionally, agencies make announcements, such as office closures, via Twitter and do expect these messages to be accepted as official announcements.
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