Unseen Policies: Trump’s Little-Known Immigration Rules as Executive Power Grab

Abstract

Throughout the Trump presidency, immigration “horror stories” have riveted Americans and people across the globe. Over the past four years, splashy headlines highlighted the United States government’s dehumanization and penalization of immigrants, from travel bans to family separation to the Wall. These stories not only captured public attention, but also masked less sensational but unjust executive rules that allowed the Trump administration to overhaul the immigration landscape and maximize executive power without changing a single immigration statute. Unseen policies of expanded enforcement, partisan immigration court controls, strategic administrative precedents, and tightened regulations have all been part of the Trump administration’s complex web of practical and legal barriers for immigrants.

This Article argues that President Trump and his administration have successfully exploited the power delegated to the executive branch in part by advancing policies that are out of the public view and which take delegated powers to unprecedented levels. Within the humanitarian, enforcement, and bureaucratic realms, the administration’s “unseen policies” impact the day-to-day lives of immigrants, transform the operation of our immigration system, and undermine the rule of law. The Article explores the detrimental impact of under-the-radar executive changes in these categories and offers broad solutions. Ultimately, to return to the rule of law and establish a humane immigration system, lawyers and policy makers of the Biden administration and beyond must identify and strategize around these quotidian, unseen policies as well as the well-known challenges.

Keywords: immigration, Trump administration, family separation, asylum, DACA, administrative law, separation of powers