Notice & Comment

Nativists are Instrumentalizing Administrative Law, by Dina Francesca Haynes

Racist, regressive leaders around the world have been instrumentalizing racism, discrimination, and “othering” to further their nativist goals. As I have argued elsewhere, regressive governments increase their own power by suppressing the rights of their opposition and subverting the rule of law often by invoking national emergency or national security rhetoric. The starting point to circumventing enshrined protections available to citizens is exerting control over non-citizens who fall outside the scope of many constitutional protections and international law. Regressive governments are also keenly aware that under both domestic and international law, moving discriminatory enforcement practices to the border allows executives more leeway in restricting rights. The fact that the law at both the domestic and international level supports, almost without exception, the ability of the executive to repel those seeking to enter strongly suggests why nativist leaders typically focus their restrictions on migrants. By moving the locus to the border, they have more authority to invoke limitations to due process and other rights, thus amassing more executive authority under the guise of national security rhetoric. At the same time, they are able to instrumentalize anti-immigrant sentiment, which then secures and entrenches the executive’s rights restricting authority within its nativist underpinnings, the one reinforcing the other. Once immigrant rights and constitutional protections are eroded generally via repeated invocation of the national security narrative, regressive leaders can then direct their ire at all other disfavored minorities with potentially less legal resistance because the rule of law has already been eroded and fewer civil rights are available to all. 

The Trump administration is no exception; in fact, in many instances it has taken this performative politics, no less devastating for being performative, to new depths by wielding administrative law processes like a nativist weapon. This is nowhere more evident than in relation to immigration law, which is governed in the US through administrative law and arguably by international law.

Congress, through the Immigration and Nationality Act, has handed aspects of administering immigration law to no less than five federal agencies. Immigration law is adjudicated in federal administrative courts, housed within the Department of Justice. Government prosecutors work for the Department of Homeland Security. The Departments of State, Labor and Health and Human Services all play major roles, depending on the particular visa or immigrant status sought. Refugee and asylum law should be an exception; although it is codified in US domestic law, it is also governed by international law through both the Refugee Convention and the customary international law principle of non-refoulement¸ which prohibits a State from returning a person who will be persecuted in their home country. The principle of non-refoulement is jus cogens, meaning no country can derogate. Taken together, this should mean that refugees and asylum seekers receive more protection. Instead, the opposite is true in regressive countries like the United States, Hungary, Brazil, and Greece, which are currently violating international law and their own domestic laws in aggressively repelling refugees and asylum seekers. For its part, the United States has accomplished this swiftly by wielding administrative law and process like a weapon.

For example, in June of 2020, the Department of Homeland Security and the Executive Office for Immigration Review, under the Department of Justice (two agencies which should operate independently from one another as the first houses immigration prosecutors and the second immigration adjudicators) issued a Notice of Proposed Rulemaking (NPR), attempting to eliminate asylum for the most vulnerable of asylum seekers. This rule, hundreds of pages long, would essentially abolish what little is left of the asylum system, following myriad other restrictive administrative actions such as the Migrant Protection Protocols (forcing asylum seekers to remain in Mexico, in violation of international and domestic law). Although asylum law is governed in the U.S. by Section 208 of the Immigration and Nationality Act, which takes its language almost verbatim from the Refugee Convention and Protocol, the executive attempts here to use administrative law process, unlawfully, to annihilate asylum law in the United States. For instance, this NPR provides only 30 days for public notice and comment. At almost 100 pages long, thirty days is too short a time to parse and respond, even though this NPR is miniscule next to the 850 plus page public charge rules that went into effect in February of 2020. These two factors alone, the shortening of time and the length and density of the rules, make it difficult to review and provide comment within the time period provided.  This is the point.  While lawyers are mobilizing to respond, we have had to do so thousands of times within the past four years, which is part of the strategy. If we are constantly operating in emergency mode, responding to changes in regulations and procedures, we are less available to represent individuals, further eroding due process for migrants. 

Aside from the procedural problems with the rule, the substance of it is devastating and would decimate asylum law in the U.S. entirely. For example, the rule would completely bar the granting of asylum on the basis of gender (bypassing both administrative and federal appellate court decisions to the contrary); it would change the very definition of persecution (bypassing both administrative, federal and international law to the contrary); it would redefine core bases for asylum claims, with the biggest impacts on women and LGBTQ individuals (bypassing federal law); it would deny asylum to people who transited through other countries on their way to the United States (bypassing federal and international law); and would denying asylum seekers basic due process by allowing immigration judges to decide cases based on written applications alone (bypassing administrative, federal and international law). Lawyers practicing law for years have tried to imagine a hypothetical asylum seeker who might still be eligible to apply if this NPR is adopted, and we cannot. That is the executive’s intention.

So, this is where we are. Rather than providing additional checks and balances, rather than enforcing constitutional norms of separation of powers, administrative law has been captured and instrumentalized by the executive branch, which is currently using it to carry out and entrench its nativist goals. And, for the most part, the other branches of government are standing by and watching it happen. 

Dina Francesca Haynes is Professor of Law and Director of the Human Rights and Immigration Law Project at New England Law|Boston, where she teaches constitutional law and courses related to immigration and international law.  She is the co-author of On the Frontlines and Gender and Conflict, both by Oxford University Press.  You can find her on Twitter here.

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