A Constitutional Analysis of Trump’s Gold Card Visa Program
On September 19, 2025, President Donald Trump issued an executive order creating the Gold Card Visa Program, which would enable noncitizens who contribute considerable amounts of money ($1 million individually or $2 million corporately) to gain hastened eligibility for an immigrant visa, though still following national security and public safety review. [1] The announcement sparked public concern as people wondered whether the president had the authority to establish a novel immigration category, given that immigration policy-making lies exclusively within Congress’s constitutional powers. Many years of existing precedent reinforces the idea that other branches may not infringe on Congress’s lawmaking authority to preserve the importance of checks and balances. Because the wealth-based immigration category created under the Gold Card Visa falls outside statutory authority, the Court should deem the President’s action unconstitutional.
Both Article I and the Naturalization Clause of the Constitution empower Congress to make laws with respect to immigration, whereas the Take Care Clause limits the President to implementing them. When analyzing immigration law, it is critical to distinguish between immigration policy and immigration enforcement. Immigration policy, which includes determining who and how those individuals are eligible for attaining a visa, derives from Congress’s authority to modulate borders through legislation. Article I, Section 8 vests in Congress the exclusive power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” attesting to the idea that Congress has powers to control borders and determine the admission of foreign nationals. [2] Albeit the Constitution does not explicitly mention immigration, the Naturalization Clause grants Congress the “power… To establish a uniform Rule of Naturalization… throughout the United States,” and the Court defined immigration as “[adopting] a foreigner, and clothing him with the privileges of a native citizen.” [3] The Framers understood that there would be future concern over status in the nation, and entrusted Congress with the responsibility to resolve political integration. Because immigration is deeply interconnected with questions of citizenship, the Framers believed it could only be addressed with set rules, which Congress would be in charge of. In contrast, the President’s powers do not include lawmaking but only enforcement. The Take Care Clause states the President “shall take Care that the laws be faithfully executed…”. [4] Thus, the President may enforce existing law, but through an originalist reading of the Constitution, cannot amend or generate new statutory requirements existingly enacted by Congress.
The constitutional split of labor indicates the Framers’ intentions of separation of powers and the nondelegation doctrine that were created to protect democracy. If the President were able to create immigration laws, it would set an alarming precedent for the executive branch being able to exercise lawmaking authority that Article I reserves to Congress. The importance of separations of powers was strengthened in Galvan v. Press (1954), where Justice Frankfurter stated that “the formulation of policies [that] is entrusted exclusively to Congress has become firmly imbedded in the legislative and judicial tissues of our body politic.” [5] Upholding the constitutionality of a specific section of the Internal Security Act of 1950, which decreed the deportation of any resident who joined the Communist Party after entering the nation, Justice Frankfurter’s majority opinion elucidated that Congress holds overarching power over the admission and removal of noncitizens, not the judicial or executive branch. In this regard, the Supreme Court bolstered the notion of separation of powers and that creating immigration policy has always been a legislative function that should not be intruded by any other branch.
Congress currently operationalizes immigration authority through Section 203 of the Immigration and Nationality Act (INA), which outlines specific visa categories and their order of preference, dividing all immigrant visas into three categories: (1) family-sponsored immigrants (close relatives of U.S. citizens) (2) employment-based immigrants (individuals with advanced degrees, specialized skills, or qualifying investment capital that directly creates full-time jobs), and (3) diversity immigrants from historically underrepresented regions. The Gold Card Visa’s intended beneficiaries fall most clearly under the employment-based category. However, the INA does not recognize wealthy foreign donors as a visa-eligible class, as monetary donations alone do not create jobs or constitute participation in commercial enterprise. The INA already includes a wealth-based pathway through the EB-5 Immigrant Investor Program, which grants visas to individuals who invest capital that creates at least ten full-time domestic jobs. [6] In this sense, Congress believes that immigration eligibility on the basis of wealth must be commensurate with economic productivity and job creations instead of donations. Within the meaning of the INA, a donation, which the Gold Card Visa mentions, is not equivalent to “investments” because they produce zero of the economic benefits Congress requires in creating the EB-5 category. Thus, the Gold Card Program itself does not modify EB-5, but instead, entirely replaces Congress’s statutory subcategories by creating a new category.
Decisions regarding immigration, especially those that create, not amend, new policies, must undeniably undergo the typical legislative process. Article I requires bicameralism and presentation of any law, progressing through the procedure of both House and Senate deliberating on a law and presenting it to the President for veto or passage, which the Gold Card Visa evades. [7] Landmark case INS v. Chadha (1983) reaffirmed this standard, signaling once again that immigration power is Congress’s concentrated authority and that no law can be passed without bicameralism. The Immigration and Nationalization Service (INS) ordered Chadha, a student on an expired visa, to be deported. However, the Attorney General granted him a suspension of deportation. In response, the House of Representatives, on its own, vetoed and reversed the suspension. [8] The Court ruled in favor of Chadha and established the principle that immigration decision-making that modifies the status of individuals are designated legislatively; therefore, the House’s actions were unconstitutional because they acted alone instead of adhering to the Constitution’s holistic lawmaking process, including a bicameral passage and the President’s final approval. Using this reasoning, the President unilaterally inventing a visa category mirrors the House’s attempt to act; therefore, the President creating a new law through an executive order should be likewise be deemed an unconstitutional act of executive lawmaking.
Only Congress can create concrete immigration policy, as reflected in the INA’s; no other actor, federal or state, may create new laws that circumvent that framework. The Court emphasized this structural limit in Arizona v. United States (2012), where it ruled that immigration policy must originate with Congress solitarily. The Court reviewed Arizona’s S.B. 1070, which attempted to pass their own immigration laws to suppress illegal immigration. The federal government sued, arguing that enforcing immigration policies exist within the realm of federal responsibility, and that S.B.1070 violated the INA. The Court concurred and struck down Arizona’s attempt to create their own immigration policies, such as “creating a state-law crime for being unlawfully present [in the country],” reaffirming that only Congress has exclusive powers over immigration because if states were able to do so, they would impede the national government from smoothly executing federal immigration laws. Following the Court’s ruling, immigration policies must be “made by one voice,” which refers to Congress’s. [9] Albeit Arizona v. US involved state rather than executive overreach, the Court’s reasoning, that solely Congress can set substantive rules governing immigration and not states, serves as a crucial parallel. Arizona v. US stresses that states may not create immigration categories outside of the INA; likewise, the President cannot create an entirely new immigration category without grounding it in statutory text.
Furthermore, according to Justice Jackson, “The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker… When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” [10] Separation of powers was once again reinforced in Youngstown Sheet and Tube Co. V. Sawyer (1952), as the Court articulated that the President cannot create laws unilaterally without Congress’s concurrence or acquiescence. During the Korean War, President Truman ordered the Secretary of Commerce to seize and operate most of the nation’s steel mills. However, the Court classified Truman’s actions to take control of private property as the lowest ebb because Congress never expressed authorization of the seizure. Justice Robert Jackson explained by outlining three categories of presidential authority: maximum authority, when Congress has authorized the President’s actions; the zone of twilight, when Congress has neither granted nor denied authority; and finally, the lowest ebb, when the President’s actions go against Congress’s “expressed or implied” will. The Court also verbalized that the President has responsibility to ensure laws are carried out, but not to act as a “lawmaker,” or make laws. Moreover, the Take Care Clause fully bolsters the notion that Presidents cannot conjure new policies, and instead, only execute laws made by Congress. The power to regulate immigration has already been outlined precisely in the INA, which represents Congress’s exercise of that power. The President inventing a new visa program outside those statutory limits mirrors Truman replacing legislative judgment with executive desires, which is not empowered by the Constitution, specifically the Take Care Clause. In this sense, Trump’s Gold Card Executive Order should be classified as the “lowest ebb” because the INA already defines and limits immigration categories, as well as solidifies a statutory framework for immigration.
Lawful executive programs, such as Temporary Protected Status, operate within statutory authority. [11] In contrast, the Gold Card Visa effectively conjures a new immigration category because “wealthy foreign donors” are not recognized textually anywhere in the INA. Much precedent and Article I itself establishes that only Congress can create immigration policy, including designating immigration categories. Furthermore, immigration policy and its alterations must be made following the standard lawmaking process, which the Gold Card Visa does not progress through. Accordingly, the Gold Card Visa should be deemed unconstitutional.
Edited by Love Patel and Ashley Park
[1] “The Gold Card,” The White House, September 19, 2025, https://www.whitehouse.gov/presidential-actions/2025/09/the-gold-card/.
[2] U.S. Constitution. Article 1, Section 8.
[3] U.S. Constitution. Article 1, Section 8, Clause 4.
[4] U.S. Constitution. Article 2, Section 3.
[5] Galvan v. Press, 347 U.S. 522 (1954).
[6] INS v. Chadha, 462 U.S. 919 (1983).
[7] U.S. Constitution. Article 1, Section 7.
[8] Immigration and Nationality Act of 1952. Pub. L. No. 82-414, 66 Stat. 163.
[9] Arizona v. United States, 641 F. 3d 339 (2012).
[10] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
[11] “Temporary Protected Status,” U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/temporary-protected-status.