Mapping Immigration Policy at the Southern Border: An Administrative and Judicial Analysis

• Author: Vicki Lens,Samantha Kanelstein
• DOI: 10.1177/0095399721991123
• Published date: 01 July 2021
• Date: 01 July 2021
• Subject Matter: Articles

https://doi.org/10.1177/0095399721991123

Administration & Society

2021, Vol. 53(6) 817 –843

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DOI: 10.1177/0095399721991123

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Article

Mapping Immigration

Policy at the

Southern Border: An

Administrative and

Judicial Analysis

Vicki Lens1 and Samantha Kanelstein1

Abstract

Presidents are increasingly relying on a mode of governing—presidentialism—

that produces radical shifts in public policy through the administrative

state, rather than through Congress. Most recently, using the tools of the

administrative state rather than legislative action, the Trump Administration

has reinterpreted the laws governing asylum, especially as to citizens from

Central America seeking refuge from violence and dire poverty. Through

a legal analysis of the judiciary’s response to these reforms, this article

examines the limits and constraints of presidential administrative power.

Keywords

immigration law, asylum, presidentialism, administrative state, judiciary

Over the last several decades, Presidents have increasingly relied on a mode

of governing—presidentialism—that produces radical shifts in public policy

through the administrative state, rather than through Congress (Kagan, 2001;

Mashaw & Berke, 2018). As described by then law professor and future

Supreme Court Justice Elena Kagan (2001), under this form of governing

1Hunter College, City University of New York, New York City, USA

Corresponding Author:

Vicki Lens, Professor, Silberman School of Social Work, Hunter College, City University of

New York, 2180 Third Avenue, New York, NY 10035, USA.

Email: vicki.lens@hunter.cuny.edu

991123AASXXX10.1177/0095399721991123Administration & SocietyLens and Kanelstein

research-article2021

818 Administration & Society 53(6)

presidents takes muscular control of administrative agencies, directly and

aggressively steering the direction of the administrative state. A prime exam-

ple of this phenomenon is the Trump Administration’s remaking of the coun-

try’s immigration system. While the last 30 years has seen a narrowing of

asylum protections by both administrative and legislative actions, the Trump

Administration has deployed its administrative powers in unprecedented ways

to deter asylum seekers and disrupt the asylum system, especially as to citi-

zens from Central America seeking refuge from violence and dire poverty.

These changes have resulted in ongoing litigation in the federal courts,

with the judiciary deciding the boundaries of presidential administrative

power through sweeping administrative action rather than legislative change.

This article examines this body of case law to understand whether the judi-

ciary has acted as an effective check on the Trump Administration’s maximal-

ist use of presidential power. The answer has substantial implications for the

effective functioning of the administrative state, the balance of powers

between the executive and the legislature, and the strength of our democracy.

This article also aims to edify. The technical and legalistic nature of the

laws governing administrative agencies and judicial case law can obscure the

process of administrative policy-making to those not versed in administrative

law. Furthermore, the asylum process is largely a legal one and thus less

understandable to those outside the legal system. Consequently, nonlegal

stakeholders, advocates, and ordinary citizens may be hindered in their abil-

ity to monitor policy changes and fully participate in policy debates. Thus,

this article also seeks to educate and inform.

First, the context and background of the Trump Administration’s changes

in the asylum process on the Southern Border are described. Then, an over-

view of the regulatory and legal framework that governs administrative

policy-making, including the President’s signature role in the context of pres-

identialism, is explained. Next, using traditional legal research methods,

including identifying key cases and analyzing their legal holdings and rea-

soning, the judiciary’s response to this maximalist form of presidentialism

in the area of immigration is described and assessed. The implications of

presidentialism in its present form, including its effect on the stability and

functioning of administrative agencies and the democratic state, are then

discussed.

Context and Background

People from the Central American countries of Honduras, El Salvador,

Guatemala, commonly referred to as the Northern Triangle, are migrating to

the United States to escape extreme poverty and epidemic levels of violence.