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Excerpted From: Jill E. Family, An Invisible Border Wall and the Dangers of Internal Agency Control, 25 Lewis & Clark Law Review 71 (2021) (389 Footnotes) (Full Document)


JillEFamilyThe story of the invisible border wall is a cautionary tale for administrative law. The Trump administration abused its power over executive branch agencies to build an invisible border wall. Through the invisible wall, the Trump administration reduced the amount of legal immigration to the United States in the absence of statutory change. The administration's success presents a major challenge to theories of internal administrative law. Internal administrative law theory posits that agencies are able to govern themselves and that external control, such as judicial review, merely gets in the way and prevents agencies from reaching their full potential.

The invisible wall was constructed with executive branch tools. The executive branch tools used include increased denial rates, delays in processing times, a de facto change to the burden of proof, increased procedural burdens, and changes in guidance documents to narrow interpretations of immigration law. These tools were developed and implemented without regard to rule of law values. The wall was invisible because it was not a physical barrier, but rather was the culmination of these various bureaucratic maneuvers that made accessing statutory immigration benefits more difficult. The Trump administration called these tools “workarounds.” That term presumably referred to working around the statute. Therefore, the Trump administration developed maneuvers around the statute to create its own immigration policy.

No mechanisms of internal administrative law were able to stop the implementation of these “workarounds.” No tool within the executive branch existed, was capable of, or was engaged to rebuff the Trump administration's abuses. Instead, data collected for this case study reveal a dramatic increase in efforts to activate external control over the administration's actions as a means of ameliorating the effects of the invisible wall. From 2016 to 2019, federal court challenges to denials of benefits applications by USCIS, the main immigration benefits granting agency, rose nearly 200% in one category and nearly 250% in another.

External control is imperfect, however. It did not stop the construction of the invisible wall, and its restorative effects are not absolute. Therefore, this case study illuminates a fundamental weakness of administrative law. No facet of administrative law, either external or internal, could stop the Trump administration from ignoring rule of law values to enact its own immigration selection preferences.

This Article illuminates the invisible wall, including how immigration attorneys responded to it, and shows the lessons of the invisible wall for administrative law. To make the invisible wall visible, this Article describes its construction and, in the process, shifts scholarly focus to the Trump administration's efforts against legal immigration. These efforts against legal immigration are understudied. To analyze the lessons for administrative law, this Article examines theories of internal administrative law and illustrates how internal administrative law failed in the case of the invisible wall.

Not only does this Article describe the administration's actions, but it also presents empirical data. A crafted data set of complaints filed in federal district courts presents the most exhaustive measure to date of the increase in litigation against USCIS under the Trump administration. Additionally, the Article describes the results of interviews with 25 immigration attorneys about their experiences representing clients applying for legal immigration status under the Trump administration.

This Article adds needed scholarly attention to internal agency controls, and it shows that internal agency control is not an effective counterbalance to the will of an administration untethered to rule of law values. When internal administrative law fails, external control must attempt to pick up the slack. There are three main lessons here for administrative law. First, internal administrative law failed to prevent the construction of the invisible wall. In fact, the Trump administration leveraged internal agency power to construct it. Second, the invisible wall shows that agency control that does not comply with rule of law values is dangerous, is hard to control, and threatens congressional intent. Third, internal administrative law needs to be enhanced because external control is not a panacea.

Part II of this Article explores the contours of the invisible border wall and the available responses to it, including the empirical data on the litigation response. Part III analyzes the dangers of internal agency control and explores how internal administrative law failed to prevent the Trump administration from building an invisible border wall that contradicts rule of law values. It also discusses how internal administrative law needs to be improved, but that it may not be capable of ensuring fidelity to rule of law values.

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This project helps to fill two voids. First, it contributes to the scholarly endeavor to study internal administrative law by illustrating how the invisible border wall presents a major challenge to theories that champion the benefits of internal agency control. The construction of the invisible border wall reveals abuses of executive power. The Trump administration exercised its centralized internal control over USCIS, the main immigration benefits granting agency, in ways that denigrate rule of law values. Second, this Article contributes to an understanding of President Trump's policies that worked against legal immigration and frustrated access to immigration benefits supplied by Congress under the INA. It compiles data that shed light both on the nature of the invisible wall and on the external control response to it.

The Trump administration conducted an opaque movement against legal immigration comprised of quiet policy choices that together added up to what USCIS called “workarounds.” These workarounds were executive branch maneuvers around the legislative statute. These workarounds were the product of centralized agency control. Through executive orders, more informal directives, and President Trump's own anti-immigrant rhetoric, the White House directed USCIS. Its centralized direction did not comply with rule of law values because it was not transparent, worked against legislative intent, resulted in great uncertainty in the interpretation and application of law, and did not promote effective governance. At best, the Trump administration was content to allow the adjudication of immigration benefits to be a roller coaster of dysfunctional uncertainty. At worst, the Trump administration purposefully steered the system to act in a way directly contrary to congressional intent.

Internal administrative law failed to prevent the construction of the invisible border wall. It failed to stop the Trump administration from abusing its centralized internal control over USCIS. Data collected for this Article show an increase in complaints filed against USCIS in federal court. Immigration lawyers sought more external control, as evidenced by a nearly 200% increase in the number of complaints filed in one category, and an almost 250% increase in another. While the external control of judicial review provided some relief to some aspects of the invisible border wall, judicial review had trouble reaching all aspects of the invisible wall. Reform of internal administrative law is necessary but, for agency self-policing to work, the White House must act in good faith to promote rule of law values. In the case of the invisible wall, the White House was able to easily surmount any internal agency defenses.

Prioritizing rule of law values leads to guiding principles for internal control reform at USCIS. These principles would lead USCIS to increase the protection of human rights, to be more faithful to its statutory mission, and to increase competence in its operations. These guiding principles, however, must be implemented by an executive branch with fidelity to rule of law values and must be backed up by external controls

Commonwealth Professor of Law and Government and Director, Law and Government Institute, Widener University Commonwealth Law School.

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