Monday, September 14, 2020

Immigration Article of the Day: An Invisible Border Wall and The Dangers of Internal Agency Control by Jill E. Family


An Invisible Border Wall and The Dangers of Internal Agency Control by Jill E. Family, 25 Lewis & Clark Law Review, 2021 Forthcoming



Administrative law long has struggled to determine the appropriate balance between internal and external control over federal agencies. Some scholars posit that internal agency controls (those from within the executive branch) are optimal checks on agency behavior. In fact, some argue that external control (from Congress or the courts) is detrimental to agency governance. This article presents a cautionary tale for those who discount the role of external control; it depicts a case study that poses a major challenge to those who theorize that internal agency controls are a sufficient check on agency behavior.

The case study is the Trump Administration’s invisible border wall. By building an invisible border wall, the Trump Administration reduced the amount of legal immigration to the United States in the absence of statutory change. The wall is invisible because it is not a physical barrier, but rather is the culmination of various federal agency maneuvers that make accessing lawful immigration benefits more difficult. The agency in charge of adjudicating most applications for statutory immigration benefits, United States Citizenship and Immigration Services (USCIS), developed what it called “workarounds” to the statute. Through its internal agency processes, it effectively made it harder to obtain immigration benefits authorized by Congress. This article sheds light on this administrative law coup, including analysis of empirical data that presents the most exhaustive measure to date of the increase in litigation against USCIS during the Trump Administration.

The invisible wall represents a challenge to those skeptical of external control because no facet of internal administrative law prevented construction of the invisible wall. The Trump Administration abused its internal power over executive branch agencies to build the invisible wall and no internal executive branch power stopped it. In the absence of effective internal control mechanisms, 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. Federal court challenges to USCIS denials of benefits applications are up 200% since 2016. In response to the internal administrative law failure, attorneys turned to external control.

While this case study shows that external control plays a crucial role in administrative law, external control is an imperfect solution. It did not stop the building of the invisible wall and its restorative effects are not absolute. In fact, some aspects of the wall cannot be controlled externally. For those that could be, the number of complaints seeking judicial review is still quite small relative to the number of denials. This case study therefore illuminates a gap in control over executive power where internal mechanisms failed and where external control is not wholly effective. Without internal or external control, there is unchecked power. This article argues that internal administrative law needs to be improved to fill this gap. The conundrum is that any improvements to internal administrative law rely on adherence to rule of law values. As the invisible border wall illustrates, without fidelity to those values, internal control mechanisms are easily defeated.


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