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

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. These countries remain consistently among the most violent countries in the world, facing levels of violence that are comparable with active war zones, including widespread gender-based violence and the targeting of children (Shifter, 2012). Amid the substantial uptick in violence at the hands of armed criminal groups, politically corrupt governments have been unwilling or unable to offer meaningful protection to civilians (Zechmeister, 2014). These are also geographically small countries, which renders internal relocation almost impossible for those fleeing persecution. Already poor countries have been further devastated by the effects of climate change, which has weakened the agriculture sector and contributed to an increase in poverty and food insecurity (Sigelmann, 2019).

Consequently, the number of refugees and asylum seekers from the three countries of the Northern Triangle have seen nearly a 10-fold increase since 2011 (Office of Immigration Statistics & Office of Strategy, Policy, and Plans, 2019). Between the fiscal years of 2010 and 2016, the percentage of asylum seekers from the Northern Triangle who were granted protection in the United States increased by 96%. In 2016, United Nations High Commissioner for Refugees (UNHCR) estimated that there were 164,000 refugees and asylum seekers from Guatemala, Honduras, and El Salvador combined, as well as 450,000 irregular crossings from these countries to Mexico (UNHCR, 2018).

Since the 1950s, international conventions, including United Nations (UN) protocols, have recognized the need to provide protection to refuges and asylum seekers from “being returned to a country where their life, liberty or physical integrity would be in danger” (Leutert et al., 2018, p. 1). These principles have been embodied in U.S. law under the Immigration and Nationality Act (INA). Under the INA, individuals and families fleeing their countries of origin due to fear of persecution have the right to apply for asylum, and Custom and Border Protection (CBP) officers are required to refer them to an asylum officer to determine whether or not asylees have a credible fear of persecution and are unable or unwilling to avail themselves of the protection of their country of nationality (Immigration and Nationality Act, 8 U.S.C. § 1225). Fleeing poverty and violence alone is not sufficient for asylum; asylum seekers must show they are being persecuted on account of race, religion, nationality, membership in a particular social group or political opinion (8 U.S.C. § 1101 (a) (42) (A)).

Since the 1990s, federal policies and practices have become increasingly more hostile toward immigration, including toward asylum seekers from Central America. In 1996, Congress under President Clinton passed the Illegal Immigration Reform and Responsibility Act (IIRIRA), a law that consolidated the removal process, limited immigration judges of much of their discretion to grant relief from removal, and expanded offenses that could lead to removal. The IIRIRA established the expedited removal procedure, a rule that allows CBP officials to deport noncitizens who are undocumented, have misrepresented themselves, or committed fraud within a single day with no immigration hearing (Illegal Immigration Reform and Responsibility Act of 1996, 8 U.S.C. § 1158).

The IIRIRA marked a paradigm shift that conflated criminality with lack of immigration status; it significantly expanded mandatory detention of noncitizens, including asylum seekers (Kerwin, 2018). The Bush administration further criminalized noncitizens following the terrorist attacks on September 11, 2001. Changes to immigration protocols were framed as necessary safety precautions to prevent terrorists from entering the country and threatening public safety (Kanstroom, 2007). The administration divided the Immigration Naturalization Service (INS) into U.S. Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE), and CBP. A newly created Department of Homeland Security (DHS) was formed to oversee USCIS, ICE, and CBP. Immigration was framed as a criminal act and as a potential threat to national security. Fear of foreign terrorists entering the country paved the way for weakened protections for individuals and families seeking refuge in the United States. Following the massive uptick in migration from the Northern Triangle in 2014, the Obama administration responded by sharply increasing its capacity to detain families as a deterrence method (Keller et al., 2017).

In practice, the asylum system has also operated in ways that belie its humanitarian intent. Like the U.S. legal system in general, it is grounded in the adversarial legal model, but without many of the due process protections of that system (Legomsky, 2007). Although life and liberty may be at stake, there is no right to legal representation. The asylum process is also highly susceptible to the biases of individual decision makers (including front line asylum officers and administrative law judges) and institutional, political, and ideological influences that favor deterrence over leniency (Miller et al., 2014; Ramji-Nogales et al., 2009). The system is also unpredictable, with disparate outcomes in asylum applications, a consequence of both the subjective nature of asylum decisions and a fragmented system spread across multiple agencies and federal courts (Hamlin, 2014; Ramji-Nogales et al., 2009). Overall, the system is infused with a climate of suspicion, fear of the “other,” and the potential of language and cultural misunderstandings as desperate applicants seek to prove the facts and fears of their persecution (Bohmer & Shuman, 2018).

The Trump Administration’s policy changes are more than just a continuation of these trends. It has sought to virtually eliminate asylum seekers, especially from the Northern Triangle. This intent is perhaps best embodied in its publicly announced policy approach—Zero Tolerance—which directs the criminal prosecution of all adults who entered the country illegally at the Southern Border (U.S. DHS, 2018). Under this policy, children were separated from their families, and while the Trump Administration agreed to discontinue this practice after legal action, the ideology and intentions of Zero Tolerance animate its policies at the Southern Border. Through a series of administrative actions, it has attempted to block asylum seekers from applying for asylum, keeping their application alive, or proving their cases at nearly every turn.

Under the Migration Protection Protocols (also known as Remain in Mexico), asylum applicants were forced to remain in Mexico while they awaited removal proceedings (U.S. DHS, 2019). Under this policy, about 60,000 asylum seekers were returned to wait in Mexico, making it more difficult for them to access legal assistance, thus decreasing the likelihood their asylum claims will be approved (Liptak & Kanno-Youngs, 2010). Other asylum seekers, in a process called metering, were kept waiting to apply for asylum on the Mexico side of the U.S. border (Leutert et al., 2018). Although metering has been utilized in the past, it has never remained in effect for such a prolonged period of time.

In the year metering was implemented, 19,000 people were forced to wait in Mexico (Leutert et al., 2018). Mexico is also a region that is experiencing record levels of violence, and many of the gangs that asylum seekers are fleeing in their native countries have a presence in Mexico (U.S. Department of State, 2018). Requiring asylum seekers to return to or wait in Mexico made an already arduous and dangerous journey more so, exposing them to an increased risk of violence.

The Trump Administration also enacted rules that virtually eliminated the United States as an asylum destination for people from the Northern Triangle. Under the Third Party Transit Rule, asylum seekers who travel through another country to get to the United States are barred from seeking asylum (Asylum Eligibility, 2019). Asylum seekers coming from Guatemala travel through Mexico, and those coming from Honduras and El Salvador typically travel through Guatemala and Mexico. Thus, this policy systematically and categorically bars asylum seekers from the Northern triangle from access to the asylum system. Finally, the Trump Administration barred asylum seekers who failed to enter the country at designated points of entry (POEs), regardless of whether or not they have credible fear (Aliens Subject to a Bar on Entry, 2018). It thus eliminated an entire class of people (those already in the United States or who crossed at other border parts) who under earlier Administrations would have been recognized as asylum seekers.

The Trump Administration also raised the bar for proving a credible fear of persecution, the baseline standard for the granting of asylum. Under the Obama Administration, a credible fear of domestic violence and gang-related violence was sufficient. Under the Trump Administration, asylum adjudicators are directed to deny claims connected to domestic violence or gangs (Matter A-B, 2018; U.S. Citizenship and Immigration Services, 2018). In addition, asylum seekers who are fleeing persecution based on threats to their family members are no longer protected based on status in a particular social group (Matter of L-E-A, 2019). Asylum seekers are also now required to demonstrate that their government either condones or is completely helpless to protect against the dangers being fled.

The Trump Administration has also directed the blanket detention of asylum seekers after an initial credible fear determination. In the past, once asylum seekers passed the first screening for credible fear, they were eligible for release through advanced parole pending a formal immigration hearing, unless they posed a flight risk or danger to the community (U.S. ICE, 2009). Historically, DHS has relied on the parole directive to grant parole to thousands of asylum seekers with credible fear claims (Kerwin, 2018). Detention was often considered unnecessary because asylum seekers so seldom have criminal backgrounds. Under the Trump Administration, asylum seekers are forced to endure long periods of detention in substandard conditions rather than being permitted to care for themselves and their families in the community during the pendency of their immigration cases.

In sum, the entire thrust of the Trump Administration’s asylum policies is to deflect and divert asylum seekers at the Southern Border, as embodied in the aptly named “Zero Tolerance” approach. While previous administrations have attempted to control the flow of asylum seekers and decrease their numbers at the Southern Border, the Trump Administration’s goal is to break the asylum system, not harden or reform it at the edges.

To enact these policy changes, the Trump Administration used an array of tools, from Executive Orders, to the formal regulatory process to more informal internal agency directives that interpret the law and regulations for application, to instituting new practices on the front lines without any evident directives. As the next section describes, the choice of tools matter when making policy through administrative action.

Overview of Regulatory and Legal Framework

Much of the work of governing is done through administrative agencies. Housed in the executive branch, but bound by the laws passed by Congress, administrative agencies exist at the fulcrum of these two branches of government. The Constitution says little about administrative governance, or as one scholar noted, “There is a hole in the American Constitution where administration might have been” (Mashaw & Berke, 2018, p. 552). The Constitution does not create any administrative structures and only broadly defines the role of the legislative and executive branches. Specifically, Article I of the Constitution grants broad powers to Congress to govern, while the president’s power is captured, in part, by the Constitutional imperative that they “take Care the Laws be faithfully executed” (U.S. Const. Art. II, Sec. 3.).

Whether the fulcrum bends toward Congress or the President can depend on how presidents exercise their executive power. While earlier models of the administrative state emphasized such features as expertise and the influence of interest groups, the presidential control model—or presidentialism—switched the focus “to the one governmental actor responsive to the entire nation” the President—and their willingness and ability to assert more direct control over executive agencies (Bressman, 2003, p. 486). This style of administrative governance took root in the Reagan Administration and grew even further in the Clinton Administration (Kagan, 2001). Both administrations issued Executive Orders that enhanced control of the regulatory process and used administrative agencies to pursue their policy agendas. Clinton also instituted a practice of continually apprising executive branch officials, through formal directives, of how to utilize their administrative discretion (Bressman, 2003; Kagan, 2001). As presidential power grew and politics became more polarized, presidents have increasingly relied on federal agencies to implement major policy initiatives (Bulman-Pozen, 2019; Kagan, 2001; Shane, 2009). Accordingly, subsequent presidents, Democrats and Republicans alike, have continued the expansion of presidentialism (Bressman, 2003; Mashaw & Berke, 2018; Shane, 2009).

There are an array of administrative policy tools that presidents can use to operationalize enforcing statutes and to effectuate policy changes. The most formal in terms of procedural requirements is the promulgation of rules, which carry the full force and effect of law. However, much of the regulatory work of agencies is done through policy directives, memorandum, and other internal agency pronouncements that provide guidance on how an agency intends to implement and apply its rules and regulations. The use of these more informal mechanisms has greatly expanded, outpacing the more formal regulation by rules (Cole & Garvey, 2016; Mendelson, 2007).

Informal directives can facilitate the work of a bureaucracy, including guiding low-level employees. However, as presidents increasingly utilize administrative agencies to enact their policy agendas, especially when stymied by legislative gridlock and polarization, they have also been used to enact major policy changes (Chen, 2017; Cole & Garvey, 2016). As one pre-Trump Administration example, after Congress failed to act on immigration reform, President Obama initiated Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA) through a memorandum from DHS to various immigration agencies directing them to defer deportations (Mashaw & Berke, 2018).

Agency actions—by rule, directive or otherwise—are governed by both its enacting statute and by the Administrative Procedure Act (APA), which has been described as a sort of “constitution” for administrative law (Hickman & Pierce, 2014, p. 18). Enacted in 1946, in response to a growing concern over bureaucratic accountability and arbitrariness, the APA “aspired to strengthen administrative procedures and judicial review to prevent arbitrary agency action” (Bressman, 2003, p. 473). Procedurally, it outlines the process by which agencies promulgate rules. Specifically, it requires that the public be provided with notice of any proposed rule and an opportunity to comment on it, with the final rule published in the Federal Register. This requirement insures both transparency and public input and has been described as “arguably the most open and deliberative of any processes in American federal governance” (Mashaw & Berke, 2018, p. 612).

Substantively, the APA also ensures that administrative agencies act within the boundaries set by the agency’s enacting legislation. Specifically, Sec. 706 (1) of the APA allows a court to “compel agency action unlawfully held,” whereas Sec. 706 (2) allows courts to set aside agency actions that are “arbitrary, capricious, or an abuse of discretion,” or otherwise not in accordance with law or in excess of the authorizing statute. The central administrative law principle underlying these provisions is the doctrine of “ultra vires,” which deems unlawful any acts that go beyond the scope of an agency’s authority (Hickman & Pierce, 2014).

Judicial review, though, has its limits. The agency action in question must also be a final one. In other words, it must not be a tentative or provisional policy not fully vetted through the agency’s decision-making process. The APA also excludes those types of routine front line decisions that involve exercises of discretion as long as those acts do not violate a specific legal command. These exceptions leave agencies room to maneuver and apply their expertise and discretion without intervention from the judicial branch.

To a much larger degree than President Obama, and arguably any other President, the Trump Administration has flexed its administrative powers in the context of immigration. All of its major policy changes have been challenged in court, thus relegating to the judiciary whether “the president told me to do it” (Mashaw & Berke, 2018, p. 554) is a sufficient defense to claims of unlawfulness. Key decisions, stopping virtually all of the reforms, have been issued by federal district courts and appellate courts (see the appendix). The litigation is ongoing, and several decisions are in the form of a Preliminary Injunction, which is a temporary form of relief preventing a policy from being implemented until the Court issues a final decision. However, because courts are required to consider, among other things, whether the plaintiffs are likely to succeed on the merits, these decisions provide a window into how the law is being applied.

The following analysis is divided into three parts. “Internal Administrative Actions and Practices” section describes the judiciary’s response to those policy changes that were implemented through informal or internal administrative actions or practices. “Formal Rules” section focuses on policy changes enacted through the formal regulatory process. “Conclusion” section, the conclusion, considers whether, overall, the judiciary effectively thwarted the Trump Administration’s attempts to remake the asylum system through administrative action.

Internal Administrative Actions and Practices

Several reforms of the asylum system were accomplished through the use of internal agency directives or changes in front line practices rather than the formal regulatory process. Specifically, both the denial of parole to asylum seekers and metering first manifested through the practices of front line workers. The Remain in Mexico policy and the dilution of the credible fear standards were initiated via internal agency policy memorandums. As noted above, internally directed changes raise potential barriers to the APA’s applicability. They must be final, not temporary or interim policies, and not involve acts of discretion, but specific legal wrongs.

Policies that arise out of front line practices, and not written policy directives, present an even bigger obstacle to judicial review under the APA. The work of administrative agencies involves a myriad of discretionary actions by front line workers (Brodkin, 2011; Lipsky, 1984). Day-to-day operations, as directed by management, are also within the agency’s discretion. Processing asylum applications, as one example, requires balancing speed, order, and efficiency, all of which involve discretionary operational decisions. Thus, Courts have been hesitant to get entangled in such decisions, unless such practices both violate the law and constitute a final agency policy. As one Court explained, in distinguishing between operational decisions and fully formulated and final policy decisions, one cannot “simply attach a policy label to disparate agency practices or conduct” (Al Otro Lado v. McAleenan, 2019, p. 1207).

As described next, despite these caveats, all of these reforms failed to withstand judicial scrutiny. First, those policies that first manifested as front line practices are described, followed by those based on internal policy directives.

Formal Rules

Two major policy changes—The Third Country Transit Rule and limiting asylum claims to POEs—were enacted through the regulatory process. The Third Country Transit Rule required asylum seekers who traveled through another country en route to the U.S. Southern Border to first apply for asylum in at least one other country (Asylum Eligibility, 2019). The POE Rule, which was linked to a Presidential Proclamation, effectively required all asylum seekers to enter through POEs (Aliens Subject to a Bar on Entry, 2018). Those who did not apply for asylum in another country first or came across the border at other points (or who were already physically present in the United States when they applied for asylum) were categorically deemed to have no credible fear of persecution, and hence ineligible for asylum. In short, the net effect of both Rules was to halt virtually all asylum seekers at the Southern Border.

Both rules were held invalid by the courts. Applying Chevron, the federal district court in East Bay Sanctuary Covenant v. Barr (2019) found that the Third Country Transit Rule was arbitrary and capricious in violation 706 (2) of the APA. As noted above, before deferring to an agency’s interpretation of the law, the Chevron rule requires the Court to consider whether its interpretation is contrary to the law as written and understood by Congress. As a rule—versus a memorandum or an internal agency directive—the Chevron test clearly applied. Two existing statutory provisions spoke to the matter. The “Firm Resettlement Bar” allows the government, on a case-by-case individualized basis, to deny asylum if the applicant is already settled elsewhere and no longer subject to persecution (Immigration and Nationality Act, Sec. 1158 (a) (2) (E)). The Safe Third Country Bar similarly allows asylum to be denied if by formal agreement another country has agreed to accept refugees and where their life or freedom would not be threatened (Immigration and Nationality Act, Sec. 1158 (a) (2) (B)-(C).2.). As the Court explained, the Third Country Transit Rule provided for none of the safeguards contained in either of these laws. It did not allow for the individualized determinations required under the Firm Resettlement Bar or the formalized determinations that an individual country was a safe option under the Safe Third Country Bar. Instead, contrary to voluminous evidence, it assumed that Mexico (and other countries asylum seekers may have passed through) were safe options. As the Court concluded,

when Congress barred asylum to an applicant with an alternative safe option in another country, it required reasonable assurance that he will not suffer further harm or persecution there, in keeping with the long-held understanding that these bars apply to those who have somewhere else to turn. The Rule’s sweeping approach makes no attempt to accommodate this concern, and so is antithetical to the statute’s structure and unmoored from the purposes and concerns of the underlying statutory regime. (East Bay Sanctuary Covenant v. Barr, 2019, p. 945)

Similarly, the federal appellate court, in East Bay Sanctuary Covenant v. Trump, found the new POE Rule to be arbitrary and capricious in violation 706 (2) of the APA. Unlike other Rules, the POE was attached to a Presidential Proclamation, which suspended entry of all migrants for 90 days except for those that entered through POEs. The Rule simply referenced the Proclamation, making any asylum seekers who entered in violation of the Proclamation ineligible for asylum. Thus, the Court’s first task was to separate the Proclamation, which did not constitute an agency action under the APA, from the Rule which referenced it. It did this by noting the Rule’s effect and consequences, including the magnitude of the change in immigration procedures, including 70,000 asylum seekers entering between POEs in the previous year. Its statutory analysis of the Rule was straightforward, with the Court noting that the Rule conflicts with the plain meaning of the INA which states that asylum seekers may seek asylum when they are “physically present in the United States” or “arrives in the United States (whether or not at a designated port of arrival)” (Immigration and Nationality Act, 8 U.S.C. § 1158(a)(1)). Thus, the government’s argument failed the first step of the Chevron test, as it was not an ambiguous statutory provision that required further interpretation by the agency. Even if it was, the Court said, it would still fail the second step of the Chevron test, which prohibits arbitrary and capricious interpretations of the law.

In both cases, the Courts also found the government had violated the APA’s notice and comment rules. While the Third Country Transit Rule was published in the Federal Registry, the public did not have an opportunity to submit their views until after the Rule took effect. This failure, according to the district court, eviscerated the whole purpose of the rule which is to encourage public participation and for the agency to “consider and respond to significant comments received during the period for public comment” (East Bay Sanctuary Covenant v. Barr, 2019, p. 948). This was especially the case where the policy changes involved “important cases”: “[t]he greater the public interest in a rule, the greater reason to allow the public to participate in its formation” (p. 948). Likewise, the appellate court also found a violation of the APA because the POE Rule was issued without notice or comment and the 30-day grace period before a proposed rule takes effect (East Bay Sanctuary Covenant v. Trump, 2020).

Notably, both Courts rejected the government’s argument that the Rules were exempt from notice and comment under the “foreign affairs” and “good cause” provisions of the APA. Specifically, Sec 533 (a) (1) exempts Rules that involve a “military or affairs function of the United States,” whereas Section (b) (3) (B) allows an agency to forgo notice and comment when it would be “impracticable, unnecessary, or contrary to the public interest.” As the appellate court explained, the foreign affairs exception applied only where “the public rulemaking provisions should provoke definitely undesirable international consequences.” (East Bay Sanctuary Covenant v. Trump, 2020, p. 26). It found no evidence of such while noting the exception “would become distended if applied to INS actions generally, even though immigration matters typically implicate foreign affairs” (p. 26). Both Courts also rejected the government’s argument that public notice of the Rules would be contrary to the public interest because immigrants would be incentivized to cross the border, with any surge threatening their health and safety, if they knew of any impending Rule changes. The Courts found insufficient evidence that would be the case.

Conclusion

The Trump Administration’s reform of the asylum system is arguably presidentialism at its maximalist, with the President using his power to enact a radical policy shift wholly outside the legislative process, without a single change in the laws that have governed the asylum process for decades. Substantively, a common theme throughout the asylum cases was the Trump Administration’s statutory overreach, which often ignored the plain meaning and intent of immigration laws and settled practices and precedents. Even under an aggressive form of presidentialism, it is Congress’s policy choices that control, including the choices of past Congresses (Mashaw & Berke, 2018). Simply put, the laws that presidents are charged with “faithfully executing” include all laws, past and present. Thus, while presidents may tinker around the edges of these laws, stretching them one way or another, they cannot wholly disregard or contradict them.

The courts also paid close attention to the administrative policy tools that were used or ignored by the Trump Administration to upend the asylum system. These included the full range of tools, from bottom-up changes that manifested first on the frontlines, to the use of internal directives, to the formal promulgation of rules. Metering, as one example, was initially untethered from even internal policy directives and involved the seemingly routine and discretionary front line exercise of ensuring the orderly flow of asylum seekers. But its denouement by the courts communicated a different lesson that agencies—and the executive—cannot substantially alter front line practices sub rosa or covertly by bypassing even internal administrative tools for directing the actions of officials. As the denial of parole cases demonstrated, executive agencies cannot adopt front line practices that contradict the directives and rules enacted by past administrations.

In sum, while many of the court decisions are provisional, they have been virtually unanimous in refusing to allow the Executive to proceed unchecked. Using all of the legal tools at their disposal, including both the substantive and procedural rules embodied in the Administrative Procedure Act and the courts’ refusal to defer to the agency’s interpretation of asylum law when it conflicted with Congressional intent, the federal courts thwarted the Trump Administration’s major policy initiatives. However, an important caveat remains. The U.S. Supreme Court has yet to weigh in with a final determination on the merits on any of the cases. Unlike the federal Courts of Appeal Court, it is less favorable to immigration and more likely to cede control to the Executive on such matters (Law, 2010). This dichotomy has continued in the Trump era, as exemplified by the travel ban cases. The Supreme Court upheld the travel ban, in contrast to all but one of 11 lower federal courts who overturned the ban (Lens, 2019). It has also stayed the injunctions against the Third Country Transit Rule and Remain in Mexico pending a final decision.

Discussion

Although the legal outcomes are unambiguous, the asylum cases also shed light on the phenomenon of presidentialism, including how, for better or worse, presidents take command of agencies, and the implications for the administrative state and democracy writ large. As noted earlier, presidentialism as a mode of governing has dominated over the last many decades. It has elicited both praise and condemnation from scholars. On one hand, some have argued that presidentialism promotes administrative accountability, transparency, and effectiveness (Bressman, 2003; Kagan, 2001). It replaces faceless unelected bureaucrats with the one nationally elected, and hence accountable, leader. Presidents can circumvent legislative and bureaucratic sclerosis to make needed and overdue reforms in response to current conditions. On the other hand, presidentialism can also be abused (Mashaw & Berke, 2018; Shane, 2009). It can upset the democratic process by intruding on the will of Congress, past and present, and allowing too much power in the hands of one leader, the President. Its judicious use also depends on the integrity and intent of that office holder and hence can produce a dysfunctional and insular form of governing that reflects the traits of its leader, rather than the rule of law or the democratic process.

The asylum cases are an example of the latter, as evidenced by the consistency of court outcomes. They raise the question of just how the executive can capture an agency and impose a successive string of unlawful policy changes. One explanation may lie in the fragility of the administrative state in an ever increasing partisan and volatile political environment. As new administrations seek to impose their preferred policy options, with executive actions supplanting legislative ones, core agencies functions become destabilized. Even in more stable political environments, administrative agencies harbor a variety of competing interests (Metzger, 2017). Expertise and professionalism may compete with ideological commitments; procedural and transparency requirements (such as notice and comment rules) may clash with the values of efficiency and the ability to react quickly to changing circumstances. In less volatile and partisan times, though, institutional procedures and bureaucratic norms act as a buffer, mediating these competing interests.

A maximalist form of presidentialism upsets this balance, paradoxically using the tools of the administrative state to do so. By using internal directives rather than the rule-making process, masquerading policy changes as operational decisions, and using legal loopholes to evade notice and comment rules, presidents can marginalize experts, undercut the deliberative process, and deflect public scrutiny (Shane, 2009). Accountability is thwarted as is the rule of law. In short, through an aggressive norm and law-breaking form of presidentialism, presidents can transform agencies from stable, transparent, and accountable implementers of Congresses’ policy choices to politics by other means.

Another piece of the administrative puzzle is how administrative agencies respond to this transformation and whether they resist or enable it. Agencies have a much stronger shelf life than presidents, who inherent an army of civil servants and other officials, both on the front lines and in high-level executive positions. Thus, from agency policy-making to implementation, presidents have arrayed before them potential supporters or detractors. High-level executives, who are responsible for devising policies, present the first hurdle, especially those who may not be in sync with a president’s policy priorities.

However, there are several pathways for neutralizing such officials. The first is through the appointment process. With each election, there is a mass exodus of the thousands of political appointees who staff the top echelon of agencies (Pffifner, 2010). Numbers of political appointees have dramatically increased since the ascendancy of presidentialism, as has their partisan stance. An increasing reliance on national partisan networks “enables presidents to appoint a thick layer of politically aligned agency officials” (Bulman-Pozen, p. 277), thus setting the stage for more radical policy changes, especially when the party in the White House changes. Notably, though, the Trump Administration has failed to fill many of these positions at unprecedented rates (Davidson, 2018). However, the lack of a “thick” layer of political appointees may rebound to the Administration by centralizing its power and control over administrative policy-making in the White House. This seems especially to be the case regarding immigration, a Trump Administration political priority, and where a single Senior Advisor to the President—Stephen Miller—appears to be the architect and driving force behind the changes.

The next layer of agency policy-makers—senior civil service officials—can also be neutered by their acquiescence, marginalization, or exit, all of which will result in acceding power to the executive. As Golden (2000) found in her study of four federal agencies during the Reagan administration, the response of high-level career bureaucrats to regime changes varies and is influenced by the policy culture of each agency, their professional identities and self-interest, and the level of controversy. Acquiescence rather than subversion, though, is the more typical response (Golden, 2000). Aberbach and Rockman (2000) similarly found a flexible senior civil service force that tends to adapt rather than resist as administrations and the political and ideological climate change. Those that do not can be marginalized by, for example, a reassignment of their responsibilities (Doherty et al., 2019), a tactic that has been used by the Trump Administration on a substantial scale (Davidson, 2018).

Those that do not adapt are also incentivized to exit on their own (Bolton et al., 2019; Doherty et al., 2019). As Doherty et. al. found in their study of civil servants responsible for enacting regulatory change, rates of exit increase following a party change in the White House. Similarly, Bolton et al. (2019) in a study encompassing several decades of political change in Washington found a high rate of turnover in the upper echelons of civil service, as much as 30.9% in some agencies, which they attributed to such factors as policy priorities and ideological differences. The Trump Administration has, in fact, a substantially higher rate of exodus than previous presidents, with an exit rate nearly 26% higher than under the first year of the Obama administration, and with about 18% of senior officials exiting from DHS (Davidson, 2018; Katz, 2018). In sum, hollowing out the core of senior civil service official is one way of destabilizing an agency. The hole left in expertise can be filled by a president’s lawful-or not-policy priorities.

Frontline workers pose a different challenge to presidents than their senior civil service counterparts. While not typically involved in policy-making, they implement it. It is the actions of frontline workers, or “street-level bureaucrats,” that “actually constitute the services ‘delivered’ by government” (Lipsky, 1980/2010, p. 3). Discretion is an inherent feature in front line work, especially those involving the processing of people, because of the myriad of decisions front line workers make when implementing policies (Brodkin, 2011; Lipsky, 1980/2010). Thus, what they do greatly effects whether agency policies are implemented as intended.

Like the civil servants described above, front line workers may take different paths. While workers start with the same “discretionary toolkits,” including the agency’s rules and procedures, what they chose to do are a function of many factors (Watkins-Hayes, 2009, p. 56). These include an agency’s culture and leadership but also a worker’s own personal, political, and social beliefs (Watkins-Hayes, 2009). Workers may soften the rules as Maynard-Moody and Musheno (2003) documented in their study of cops, counselors, and teachers, who sometimes went above and beyond what was required of them to help people. They can also do the opposite—harshly interpreting rules to err on the side of denying benefits or services, thus bureaucratically disentitling clients from entitled benefits (Brodkin, 1987; Lipsky, 1984). The latter can be especially useful in the political realm, where the more obscure actions of front line workers can achieve macro policy goals, but in ways less visible to the public (Lipsky, 1984).

Notably, the Trump Administration initiated major policy changes through operational changes on the front lines, as in the metering and parole detention cases. Frontline workers disentitled asylum seekers by employing tactics that deterred them from applying for asylum. Similarly, in the detention cases, which involved individualized determinations, they applied the law stringently, erring on the side of detention rather than parole. That these practices became widespread suggests that front line workers both adapted and acquiesced to the policy changes. This may reflect the culture and conditions of front line work at ICE and the CBP, agencies long known and feared for their antagonism toward undocumented immigrants.

The asylum cases, and the robust form of presidentialism they represent, also have implications for the health of our democracy and the three-legged stool it stands on. As Shane observes, power begets power; the “usurpation of authority works as a one-way ratchet” (Shane, 2009, p. 4). As executive power grows, legislative power wanes, especially during times of legislative sclerosis and partisanship. Presidential policy preferences supplant legislative preferences, past and present, with the least democratic of the three branches—the judiciary—the only recourse, and with a paralyzed legislature only a bystander to these battles.

Presidentialism also implicates democracy writ large, namely, how citizens understand and participate in policy-making. At its best, presidentialism’s accretion of power to an elected official who answers to a national constituency can give the electorate more leverage over policy-making (Kagan, 2001). But if presidentialism is exercised through a maze of internal directives, covert changes in front line practices, and a muffled rule-making process, public accountability is thwarted. When those changes are also distorted through the lens of the President’s twitter feed and misrepresentations by administrative officials, the cornerstone of a democracy—an informed citizenry—is eviscerated. Finally, when the disputes that arise are shifted to the judiciary, another unfamiliar arena to many citizens, democratic participation may be further diluted, “with litigation by the few replacing democratic action by the many” (Rosenberg, 1991, p. 12).

Thus, litigation alone is insufficient for correcting the errors and excesses of presidentialism. Also inadequate is relying primarily on the formal rule-making process, the most common conduit for public participation in agency policy-making, but less utilized under a maximalist presidentialism. Rather, nonlegal stakeholders, advocates, and ordinary citizens should be alert to the less visible ways in which administrative agencies enact policy changes. This includes changes in personnel, leadership roles and front line practices, all of which may portend more radical reforms. It also means monitoring the myriad of internal directives, training materials, and written communications to staff that provide a more complete picture of the agency’s policy priorities and practices (and which are typically available on agency websites). In short, active and informed stakeholders and other citizens can act as an antidote to a lack of accountability and transparency when presidentialism runs amuck. They can also restore electoral accountability, the core assumption of presidentialism: that citizens get the final say.