President Trump is claiming power over independent agencies and trying to redirect the administrative state, saying he is its unitary executive. But this is not the first time presidents have invoked broad authority. John Dearborn finds that President Reagan sought to gain power over civil rights agencies, saying they had gone too far in promoting affirmative action, restricting their activity and disciplining their leadership. Multiple current Supreme Court justices were involved in the saga, which helped build the unitary executive theory. David Hausman researches attempts to control the immigration courts under the first Trump administration, finding that both adding judges and setting precedent with Attorney General opinions were influential. But it mostly worked by building the bureaucracy, rather than restraining it.
Guests: John Dearborn, Vanderbilt University; David Hausman, University of California, Berkeley
Studies: “Contesting the Reach of the Rights Revolution“; “Executive Control of Agency Adjudication.”
Transcript
Matt Grossmann: The Backstory for Presidential Power Grabs this week on the Science of Politics. For the Niskanen Center, I’m Matt Grossmann. President Trump is claiming power over independent agencies and trying to redirect the administrative state, claiming to be its unitary executive. But this is not the first time presidents have claimed broad authority, including Republican presidents over civil rights bureaucracies. This week I talked to John Dearborn of Vanderbilt University about his new studies in American political development paper, Contesting the Reach of the Rights Revolution.
He finds that President Reagan sought to gain power over the Equal Employment Opportunity Commission and the US Commission on Civil Rights saying they had gone too far in promoting affirmative action, restricting their activity, and disciplining their leadership. Multiple current Supreme Court justices were involved in the saga, which helped build the unitary executive theory.
I also talked to David Hausman of the University of California Berkeley, about his Journal of Law Economics and Organizational article, Executive Control of Agency Adjudication. He looks at attempts to control the immigration courts under the first Trump administration, finding that both adding judges and setting precedent with attorney general opinions were influential, but it mostly worked by building the bureaucracy rather than restraining it. These tales are instructive for today, though both authors say the second Trump administration has gone much further. I think you’ll find both interviews informative starting with John Dearborn. So tell us about the major findings and implications of your recent article on Contesting the Reach of the Rights Revolution.
John Dearborn: All right, well, thank you again, Matt, for having me here to talk about this. So my article is thinking about a big picture question of how the rights revolution impacted the relationship between presidents in the executive branch, and specifically I’m thinking about how the creation of a lot of civil rights agencies would incentivize presidents to want to exercise more control over those agencies potentially to implement their preferred vision for civil rights policy.
What this article specifically does is it thinks about in a conservative administration, the Reagan administration, how disputes over the way civil rights policies were being implemented actually led to disputes over the structure of the executive branch itself. And in the process of the Reagan White House and the Reagan DOJ fighting with the Equal Employment Opportunity Commission and the US Commission on Civil Rights, they assert principles of what today we know as the unitary executive theory. So in a nutshell, what I’m arguing is that the emergence of the unitary executive theory is at least partly happening on some of these issues about disputes over civil rights and that this is a pivotal in the Reagan administration when that is happening.
Matt Grossmann: So what is the university unitary executive theory and what’s the role of these events you study in 1983 in this broader development?
John Dearborn: Yeah, so the unitary executive theory is a claim that is drawing on the first opening sentence of Article II of the Constitution, which says, “The executive power shall be bested in a President of the United States of America.” It’s kind of a vague sentence really. What is the executive power? How much of it is vested? What does that mean?
So the position of believers in unitary executive theory is that this means all of the executive power as Justice Scalia once put it in a dissent in 1988. And for conservatives who believe in that theory, the key to operationalizing it is that the president should have a pretty extensive removal power, the ability to fire any officials within the executive branch to effectively direct what they’re doing. So there’s of course, debates over this theory. There’s debates among originalists on how accurate is this as a description of the founding. And there’s certainly good recent evidence, especially from legal historians about how this is not necessarily the most accurate description of what’s going on at the founding. But then there’s also scholars that take a developmental perspective on when is this theory sort of emerging, particularly around the 1970s and ’80s. And that’s where I think I’m intervening with my work.
So how important are the events that I cover in this article to this theory? So in the Reagan administration, they are pushing tenets of the unitary executive on a couple of different fronts. So one of those fronts would be their approach to regulatory review, having OMB centralize and review regulations promoted by different agencies when they are having the Office of Legal Counsel give an opinion about that process. It cites the famous 1926 Myers v. US case that talks about uniform and unitary execution of the law. I think that’s the phrase.
The Reagan administration is also pushing back against Congress’s use of legislative vetoes. And in 1983, they won a Supreme Court case that says that those are invalid. This is another front on which they’re pushing tenets of this theory. And I think that some of the opinions that I talk about in these cases with the EEOC or with the US Civil Rights Commission, you really start to see the different tenets coming together in ways that are expressed essentially as a theory.
So specifically one of the things I talk about in the Reagan administration’s fights with the Equal Employment Opportunity Commission is an office of legal counsel opinion that says that the EEOC in their view should not be able to submit an amicus brief in a case that is at odds with a position that the Department of Justice has taken in a public employment case specifically that kind of case. And they specifically talk in that opinion not only about what the statutory reasoning about the Civil Rights Act was, but they start to talk about what they call a principle of unity in the executive branch. So you really see not only the sort of constitutional vision they have, but that this is becoming a principle or a theory as they’re deploying it.
So it’s not that this theory just emerges on civil rights, I would certainly not say that, but I think it is a critical point in its emergence and I think it is one that is maybe less appreciated than some of the other fronts on which this theory was emerging.
Matt Grossmann: So give us the capsule history of these conflicts and how they were resolved. I know there were slightly different conflicts at the two commissions and they were resolved differently. What does that suggest about the extent to which this was, I guess, a point of resolution or just one stage in an ongoing series of interbranch battles?
John Dearborn: I do think that it’s a stage in a larger battle and dispute over the president’s relationship with different executive branch agencies, and there’s definitely a strategic element here. So the Reagan administration is motivated by trying to change the civil rights stances, particularly on affirmative action of the Equal Employment Opportunity Commission and the US Commission on Civil Rights. And they are certainly focused on trying to prevent those agencies from clashing with the overall stance and position of the Reagan administration on these issues.
But I do think that there is more to this story than just sort of presidents and their allies trying to figure out a way to control the policy stance of the administration per se. And there’s some unique things about civil rights that are interesting to the way that presidents and their close allies are thinking about exercising power.
So in the EEOC case that I mentioned a little bit about what’s at issue is essentially the ability of the administration and the Department of Justice to feel like it can speak with one voice in court. So one of the ways that the Reagan administration wants to change civil rights policies, particularly around affirmative action, is to win major court cases that would accomplish shifts in the direction that they wanted on that policy area. But if the EEOC is able to take positions on some of the public employment cases that were at issue that were at odds with the position that DOJ was taking in court, it undermines the administration’s ability to sort of make a legal argument in favor of the particular vision of going against affirmative action that they had.
So again, this is where a policy issue over civil rights and affirmative action ended up becoming a structural issue around who speaks for the executive branch in court, who speaks for the president’s vision of civil rights. And you see a couple of different ways in which Reagan officials are thinking about this.
William Bradford Reynolds at the time is the head of the DOJ Civil Rights Division, and he’s actually the person that requests that the office of legal counsel given opinion about EEOC’s authority to submit an amicus brief in a case about public employment. So before he does that though, Reynolds actually in his own correspondence with the EEOC, talks about how well the president has taken this position. He speaks for the administration.
He talks about how the 1980 Republican Party platform had taken an anti-affirmative action stance, and that was a source of legitimacy for the broader stance of the administration that everybody knew they were going to come into office and do this. And then he asks for the legal opinion from the Office of Legal Counsel. And Ted Olson, who was the head of the Office of Legal Counsel, responds with an opinion that asserts these principles of unitary executive theory. So you get this combination of electoral mandate language fused with this constitutional reasoning that they provide in the opinion.
The conflict with the Civil Rights Commission also involves in maybe an even broader way, this question about who speaks for the administration. So in this case, the Civil Rights Commission, what they’re essentially doing on a number of issues, affirmative action, busing, the levels of budget requests the Reagan administration has for the different civil rights enforcement agencies, all sorts of things. They are critical of the administration’s approach to civil rights pretty much across the board.
I mean, that wasn’t a brand new thing. The Civil Rights Commission was set up to evaluate and talk about the state of the federal civil rights enforcement effort, but they got into immediate conflicts with the Reagan administration over this. Reagan officials were very upset about a number of those things, but particularly their stances on affirmative action. And basically this was a fight about trying to not only prevent the commission from so openly criticizing the administration, but also in the end trying to change the stance of the commission to better align with Reagan’s civil rights vision.
So you referenced the idea that the outcomes in these cases, as I talked about, are a bit mixed. So I’ll just mention that briefly. So in the EEOC case, EEOC does actually formally back down from filing their brief in the particular case that was at issue. But the brief nonetheless is leaked and attached to another civil rights group’s brief in the case. So it’s kind of like the structural principle the Reagan administration wins on in that battle. But on the policy issue itself, the EEOC’s own view of the case still gets out there into the world.
In the Civil Rights Commission case, it’s almost reverse of that. So there’s two levels of fights going on with that agency. One is a question about whether Reagan can fire commissioners that are part of the Civil Rights Commission, but that battle is happening at the same time that the agency is actually due to be reauthorized. It was going to expire. They needed to reauthorize it. And so the outcome there is a little bit complex.
Because of Reagan’s attempt to take control of the commission through firing more commissioners, Congress actually passes a law that restricts the ability of the president to fire commissioners very directly. And so in that sense, it’s a structural defeat for from the perspective of Reagan’s unitary executive principles. But the flip side is the way that political battle comes out, he gets a majority of commissioners in the short term, and the commission then totally changes its stance on things like affirmative action and busing and elsewhere.
And the administration also issues a signing statement that makes it very clear that they think that this agency is constitutionally anomalous and that this shouldn’t be a model for the creation of agencies going forward. So in that sense, the particular elements of these are both interesting for their own sake, but they also speak to this broader dynamic of potential presidential conflict with civil rights agencies, especially from Republican presidents who have asserted principles of the unitary executive. You see this come up again in both Bush administrations to different degrees, and you of course, especially see it now with the Trump administration.
Matt Grossmann: So the story is not just resonant because of the policy issues are still ongoing, but because some of the characters are the same. You, I think mentioned three current Supreme Court justices in the article, and Clarence Thomas I think is oddly the moderate or both sides of the EEOC disputes. So what can we learn from that? How much do you think the people who are still active now were shaped by these experiences and does it give any insight to what they’re up to today?
John Dearborn: Yeah, that’s a great question. So my best sense that I have, not only from these episodes, but some of the later episodes these officials are involved with that I’m looking at for-
The later episodes these officials are involved with that I’m looking at for my ongoing research is that I do think these are influential experiences, and I’ll give a couple examples as to why. So John Roberts is a figure that of course comes up in these 1983 cases, are now Chief Justice of the Supreme Court. As Chief Justice he has been pretty pivotal in advancing cases that have both asserted unitary executive theory and then on other fronts that have chipped away at affirmative action such as the Harvard case. So in that sense, just looking at some of his stances and opinions in major Supreme Court cases, there’s certainly a consistency there with his views from the early 1980s. I would also suggest that one of his actions actually in the first Bush administration is particularly telling maybe for how he had been thinking about these issues. So in a case that went to court, FCC versus Metro Broadcasting, the first Bush administration had declined to defend and was opposed to a statutory provision that had required minority preferences for broadcast licenses.
So this statutory provision was being challenged in court. The FCC wanted the DOJ to defend them on this particular issue, and not only did Roberts, who was the acting solicitor general on this particular case, end up deciding not to do that, but there was again, an office of legal counsel opinion that actually talked in sort of unitary executive terms about whether the FCC could kind of compel the administration to take a stance that it didn’t want to in court. And so you see the intersection of these two issues coming up again in something that Roberts was involved in. I was also struck in this 1983 case, the 1982, ’83 period that Roberts himself while working in the DOJ had actually written a memo about being upset about the idea that the EEOC was essentially causing the solicitor general to take stances in court, that he felt were at odds with the broader stance of the administration Department of Justice, and that they needed to loop in the Civil Rights Division more on those kinds of issues.
The reason why that’s significant is because the head of the Civil Rights Division, then William Bradford Reynolds, was known to be especially skeptical of things like affirmative action policies. So Roberts doing that clearly shows again that linkage between the policy dispute and the structural issue. William Barr is another interesting character. The person that becomes Trump’s Attorney General had been Attorney General in the first Bush administration, but before that he had been the head of the Office of Legal Counsel and he, in 1989, that office had a famous opinion about sort of the separation of powers generally. That listed just a ton of complaints about Congress interfering in their view in the president’s control over the executive branch.
And he cited the US Civil Rights Commission controversy as part of that opinion as an example of Congress inappropriately structuring an agency to be too insulated from presidential control interfering with the president’s appointment power. So that’s one example where I think you can see the earlier episode from 1983 where he was very involved in looking at the history of the Civil Rights Commission and making assertions about that history, that seems to have influenced him in writing that the office’s work on that 1989 opinion just as one example.
Matt Grossmann: So one interpretation of conservative politics is that it’s fundamentally reactionary and especially grew up around opposition to civil rights. You cite some of that material, although you’ve distanced yourself somewhat from that view, but I guess I want to give it its full do. That is, is this a sign that a lot of things that we view as inter-branch conflicts or fundamental philosophical disagreements are really papering over reactions to civil rights advance and that it’s no coincidence that it comes up again now because there’s a war on wokeness and all of this is coming to the fore more because of this big issue? Or is this just a coincidence and a confluence of actions?
John Dearborn: No, this is a really great and an important question. So I think you’re right to highlight sort of two important things here. One is about timing and then the other is sort of how central is civil rights to this story. So the sort of turn more generally, particularly among conservative presidents to having a more aggressive vision for controlling the bureaucracy happens in particularly starting with the Nixon administration, for example, and a period after a lot of the major accomplishments and laws of the right’s revolution. And I don’t think that’s a coincidence. I think that that is a big part of the story of the particular conservative vision for what the president’s relationship with the bureaucracy should be. So when I sort of describe multiple fronts, maybe different agendas, it’s because I wouldn’t go so far as to say something like unitary executive theory again, just emerges on this issue.
There are a number of fronts and things that conservative presidents and their allies want to address where this theory emerges, is useful to them. But as I said, I think this is one of the most critical fronts on which it emerges, and in the broader project that I’m working on that this article comes from, I go back earlier than the Reagan administration to think about some of these things. So I want to give an example that I do reference in the article of a really important piece, or at least a really illuminating piece from the National Review in 1974 that I think can help us think about this. So in 1974, Jeffrey Hart writes a piece in which he talks about how conservatives should change their vision of the presidency and presidential power. What he’s doing in this piece is he’s addressing the fact that for a long time, conservatives had a certain skepticism of presidential power.
They viewed it as a tool of big government liberalism associated with leaders like FDR, for example. But what Hart does in this piece is he links together a number of things about presidential power, bureaucracy and civil rights in ways that I think become more significant with the benefit of hindsight. It’s also interesting when he writes this piece, by the way, because this again is in 1974. It’s coming out shortly as I recall, after Nixon’s resignation. So this is at a point when the prestige of the presidency is at a really low ab and a lot of people are critical and suspicious of presidential power generally. But one of the things that Hart does in this piece is he writes that one long-term change in the equation of political power, he says, involves the steady growth of the federal bureaucracy, which though nominally part of the executive branch actually operates with considerable autonomy.
So far he’s making almost like a kind of deep state claim. There’s these bureaucrats that are out there that are just doing their own thing. They are unelected, they’re acting autonomously. Then he gives a specific example. I think the example is really revealing. He goes on to say, quote, “The officials that hue, who write the guidelines on racial quotas,” and then he goes on and says, “The officials at other federal agencies who promulgate all manner of regulations are virtually immune to power to protest via the ballot box.” So he’s not just saying it’s about his view of quotas, but it’s an awfully revealing example that he specifically name checks that one. Then he goes on and says that the only way these agencies can be diverted, cut back or eliminated is through the action of a powerful president who was willing virtually to go to war with his own executive branch in order to carry out his mandate.
If conservatives wish to get the executive branch behind policies they deem desirable, they can only do so by supporting a powerful and activist presidency. That piece feels like that could have been written in any recent time for somebody who was a supporter of the Trump administration. It has the kind of anti-deep state type language. It has the desire for broad presidential power. You see that civil rights policy is on his mind, and this is from 1974. And so I think what that shows you is that certainly amid the major concerns that the conservative movement has for potentially embracing a stronger presidency, civil rights is very much on the mind of many of those folks and is influencing their thinking about how presidential power could potentially be used to achieve some of the policy goals that they have.
Matt Grossmann: So this would also seem to be an intervention in the debates that we’ve been having about how much of an aberration that Donald Trump is from the Republican Party’s history and the Trump administration’s is from prior Republican administrations because the story shows a lot of continuity, not just in the kinds of claims that are made, but what they are reacting to. And in terms of the development of executive power over time and how it might be used. In other words, nothing that’s happened in the first a hundred days I don’t think would be more surprising after you reading your article, it might even be less surprising, all of it. So to what extent can we consider Trump kind of an extension of what was happening in the Reagan era and maybe less of an aberration than we have been speaking about?
John Dearborn: Yeah, I feel like that question in some ways is what all of us in political science that focus on American politics or certainly focus on the presidency have been grappling with. What’s new versus where are the continuities? I certainly think that there are unique things about Trump as president, about some of the things the administration is trying to do. I would especially say that in the context of civil rights here, I think the aggressiveness and the breadth of what they’re doing, the sort of across the board nature and ambition is certainly striking. That stands out even compared to some of the other presidents that one can talk about here. But as you said, and I appreciate this, if you read the article and think about the cases I talk about from the Reagan administration, you would be less surprised by what’s gone on in the first a hundred days.
That’s certainly the reaction that I have. I’m not really surprised by any of the individual actions per se in this domain. It just might be the totality and the speed with which they’ve tried to do things across the board. So I think it helps to think about the Trump vision for clashing with the civil rights bureaucracy, and frankly, a lot of other agencies of the bureaucracy too, as in some ways decades in the making. So many of these actions are building or expanding or going further than Reagan era precedents. The firing of the EEOC commissioners, to be sure, that’s a bold action by Trump, but he’s not the first president to at least assert that he should have that authority.
What he’s doing is now taking the actual action. He’s now himself having some disputes over whether he can name who the chair of the Civil Rights Commission is. So that seems like we’ve heard about that in the past. second Bush administration had some of these kinds of fights with the Civil Rights Commission as well, and I think it helps to understand this administration by looking back to that multi-decade history of how the conservative vision for presidential power has been at least substantially motivated by a desire to change how civil rights laws are implemented or to push back on what they viewed as not a desirable implementation of those particular laws.
Matt Grossmann: So you of course, have written more broadly about relationship between Congress and the presidency and the relative power of each in these inter-branch conflicts with one of the key takeaways being that Congress has repeatedly given power to the President. So certainly we’ve seen some examples of that with tariffs and some of the immigration authority. DOGE might be seen as, I don’t know, a counter example, or at least an example where the President seems to be taking quite a bit of additional power that is usually reserved more strongly by the legislative branch. So how do you view these developments in line with that long-running view, and is there any chance that we’ll finally see some more congressional pushback?
John Dearborn:
Yeah, so one of the things in my past work in my book, Power Shifts, that I focused on was how in the first half of the 20th century, a lot of Congress’s delegations of power to the President, its buildup of what we now know as the institutional presidency, was based on an assumption that because the president was elected by the whole nation, that they would uniquely have a national perspective, take the national interest, have that in mind, and that assumption falls on hard times. By the 1970s, it’s much more directly called into question. It’s not necessarily viewed as a straightforward truism anymore in the wake of Vietnam, in the wake of Watergate. And so there is pushback against the presidency in that decade. Subsequent to that, since at least the early 1980s as Francis Lee’s work has shown us, we’ve been in an era of insecure majorities in which control of Congress is at least potentially up for grabs in most elections. And so that has some particular incentives for potential pushback on the presidency.
For potential pushback on the presidency, I think that kind of partisanship and polarization leads to more support for a party’s president among co-partisans. I think it leads to less focus across the board of members of Congress to focus on the institutional prerogatives of Congress. Eric Schickler’s work, Disjointed Pluralism, talks about how there are at least certain eras in our history, maybe the mid 1940s is one, the 1970s is one, where concerns about Congressional capacity actually become really salient and cause Congress to think seriously and try to push back a bit against presidential power. I think that that’s harder when you have that kind of partisanship and sort of the incentives that the era of insecure majorities leads to.
So, just one example from a couple that you gave, tariffs of course are an area where you might expect pushback, and you actually do see some evidence of this. It’s pretty clear that some Republican legislators are uncomfortable with how Trump is using and potentially abusing his tariff authority, that there’s even been legislative efforts to introduce laws that would take away some of the president’s authorities in that area. Of course that’s tricky because they would have to overcome a presidential veto, presumably. The particular use of his authorities also is being challenged in court because of the way that he’s interpreting the 1977 International Economic Emergencies Power Act.
But what I would say more broadly about this is that something like the president’s use of tariffs is an example of how Trump has called even more into question this kind of core assumption about presidential behavior. Which was that it was long assumed that presidents elected by the whole nation would have this more holistic perspective on tariffs, that it would make them more likely to favor lower tariff rates, freer trade. This was directly the assumption Congress had when they empowered the president with the ability to lower tariffs in 1934, for example. And that they would have a measured approach to tariffs. Again, that they would take the national interest in view.
And so, Trump’s approach to tariffs, aggressively using them, raising the rates super high, changing them seemingly on a dime, all those things, that just generally really does not fit with the expectation lawmakers had had in delegating any kinds of tariff authority to the president in the past. And so, I think that there’s going to be a degree of pushback, but the question is whether that can overcome some of the other incentives that lawmakers have to favor presidents of their own party. My own view is that you would only see a full, significant pushback against tariff authority, as one example, if there was actually a real economic crisis that directly results from it, which of course there could be.
Matt Grossmann: You’ve also written a lot about how this control over the administrative State is kind of an ongoing problem, sort of inherent to our system or our Constitution. I wonder how that might challenge or relate to some of the claims we’ve been seeing from our comparative colleagues that the US is undergoing democratic backsliding or moves toward authoritarianism that really do have to do with ongoing instances of increases in executive power.
On the one hand, of course increases in executive power are related to a democratic breakdown in other parts of the world. On the other hand, we might see this as much more specific to the US Constitutional system and therefore might evaluate some of that potential differently. What do you think?
John Dearborn:
Yeah. I think the perspective of our comparative politics colleagues on this is really, really vital, and so important, and I think has made all of us take these kinds of questions about democratic erosion in America very seriously. I would also say as a plug to my particular subfield, I think American political development scholars have been really attuned to this as well. One of the works I’m thinking of, for example, is Rob Lieberman and Suzanne Mettler’s book, Four Threats, that looks at past moments and threats of democratic backsliding in America.
So, I think that on the one hand, yes. My co-authors, Steve Skowronek, Des King and I in our book, Phantoms of a Beleaguered Republic, we talk about how this question about control over the administrative State has long been an unsettled issue in our political history, and that that matters a lot. But one of the other things that we talk about in that book, and that I’m thinking about in this project now on civil rights that directly connects to this question about democratic erosion, and backsliding, and potential authoritarianism, is there are serious risks that the move towards a unitary executive can entail, we think. And the second Trump administration in particular is really making those rather clear, I think.
One of the things that we thought in that book, and that I certainly think now, is that the push for a unitary executive in practice ends up personalizing presidential power to a major degree. And what I mean by that is it involves potentially more arbitrary decision-making and then just saying, “Well, he’s the president. It’s Constitutionally justifiable. That’s that.” It involves things like potentially targeting enemies.
So, Trump’s executive orders targeting law firms, the efforts to target particular universities. I think all of those kinds of things show the risks of unitary executive theory as a Constitutional doctrine in practice, and obviously those kinds of actions are the things that our comparative politics colleagues would highlight as key markers of the risks of a move into an authoritarian system.
So, I would say that I know probably unitary executive advocates would not claim that their theory is an authoritarian one. They have their view of the theory and its history. But at least as the Trump administration has actually put it into practice, I think those kinds of risks of authoritarian moves are really clear now, and again, it involves the personalization of power and the ability to use the massive resources of the federal government to potentially target enemies, as an example.
Matt Grossmann: So, we know that Republican presidents have long tried to restrain civil rights agencies, but President Trump has focused particular emphasis on immigration, and we can learn from his first efforts in the first administration, studied by David Hausman.
So, you have a recent article on executive control of agency adjudication focusing on immigration policy in the first Trump administration. What’d you find?
David Hausman: Well, we found that Trump did take control of the immigration courts, but maybe not in the way you’d expect. So, we found three things. First of all, the most important thing that Trump did the first time around is that he hired hundreds of new immigration judges, and that just led directly to more deportation orders. But one thing we found that surprised us was that those immigration judges were not on average harsher than the immigration judges who were there already. And so, he created more deportation orders, but not by hiring different kinds of immigration judges, just by hiring more of them.
And then the last thing we found is that one of the most effective things from the administration’s perspective that it did was just to change the rules. The Attorney General has this power to overturn decisions of the immigration courts and set new precedents, and Attorney General Sessions use that power a lot and set a couple of really important precedents that we evaluate in the paper and show led to additional removal orders.
Matt Grossmann: So, if all you need to do is just hire more judges, why isn’t that the approach this time? And why was it a priority of some Democrats during the Biden administration? Everybody seems to be working at somewhat cross purposes here.
David Hausman: Yeah. I think we might still see that it becomes a priority of this second Trump administration. But as we all know, the first Trump administration is in lots of ways a poor guide to the second Trump administration, and the second Trump administration is much less willing to accept existing legal guardrails, much less willing to accept standard ways of doing things in terms of government personnel, and so, it’s trying some more radical strategies as well.
There’s this really interesting question of why the Democrats have also pursued the strategy of hiring more immigration judges, and I think there are two possible reasons for it. First of all, by the end of the Biden administration, the Democrats had reached a place of favoring very strong restrictions on immigration and particularly very strong restrictions on asylum. So, in that sense, I’m not sure there was that much distance between them and the Republicans in terms of wanting to produce more deportation orders in immigration court.
And then secondly, I’m not sure that the valence of hiring more immigration judges is always well understood. So, here’s how the logic goes. Basically, most immigration court cases end with a deportation order. Far from all. Lots of people have ways to show that they have a right to stay in the United States. But most deportation cases end with a deportation order. And so, if you just process more cases, you get more deportation orders. But I’m not sure that that’s how the debate comes through when we hear, for example, about the growing case backlog in immigration court.
Matt Grossmann: The second strategy that you found that works might be more consistent with what the second Trump administration is trying to do, but they’re trying to do it a little bit more from the top, starting with executive orders and then kind of getting agencies to implement them. How similar is that to what you found in the first Trump administration? How much did these Attorney General rulings look like the kinds of things we’re seeing now?
David Hausman: So far under the new Trump administration, we haven’t yet gotten the kinds of Attorney General rulings that we saw under the first Trump administration. But that’s not at all to say I wouldn’t expect them. I just think it takes some time to get going in that way. But maybe the thing to say here is that there’s a broader point, which is that the Trump administration now, the second Trump administration, is extremely frustrated with the immigration court process period, and what it really would like to do is bypass that process as much as it can.
We’ve seen that with its invocation of the Alien Enemies Act, the centuries-old act that it claims gives it the power to expel people without any kind of procedure at all. We’ve seen that in the expansion of a form of fast-track removal that typically in the past has been saved for the border. It’s called expedited removal. The Trump administration has expanded that and wants to apply it to anybody anywhere in the country within two years of entry.
So, I would say their first focus has been on bypassing the immigration courts this time around. And so, that’s one way in which things are different. I would still expect the strategies we saw last time to be used again this time, it’s just they’re doing things in a more extreme way this time and actually want to bypass the system.
Matt Grossmann: So, you of course focused on immigration, but you also made some points about general presidential control of the bureaucracy, and one of them might be seen as being at odds with the DOGE formation in the second Trump administration. That is, in both of your cases it’s sort of about building bureaucratic capacity, having more people in there, and then having legal capacity to kind of look through these cases and make the right decisions to change their behavior. So, is the DOGE strategy at odds with that, and are there lessons beyond immigration?
David Hausman: I think potentially the DOGE strategy is a little at odds with that. We’ve already seen the administration fire lots of personnel in the immigration courts, a bunch of people on the Board of Immigration Appeals, a few dozen immigration judges who were still in their probationary period, and then lots of other immigration court staff. And I think that could actually interfere, at least in the short to medium term, with the immigration courts processing cases and therefore issuing deportation orders.
That said, again I think the administration is pursuing something a little bit more radical. So, we found the first time around that the Trump administration wasn’t able to really change the composition of immigration judges in terms of who it hired. I think there’s every reason to think that might go differently this time because this new Trump administration is so much less constrained by rules and norms than the first Trump administration was.
So, our best guess about why we didn’t see that selection effect or that compositional change the first time around was that, first of all, career employees were involved in the selection of a short list. And then secondly, most of the selection happened in kind of a local, regional way, which limited the scope of that kind of selection. And I would absolutely be concerned that they will do things differently this time around, and so, they may be less focused on building out capacity and more focused on selection for that reason. There’s also something else that’s I think important to know about the immigration courts, which is that there are really-
… courts, which is that there are really two kinds. So there are detained immigration courts and non-detained immigration courts. Detained immigration courts are for people who are imprisoned during their deportation proceedings, and non-detained ones are for people who come to their deportation proceedings, but otherwise are living their lives pretty normally.
Now, sometimes, people move from one kind of court to the other if they’re released on bond, but these are very different kinds of courts, first of all, in terms of how they operate. Detained ones move much more quickly, people are much less likely to win their cases and avoid deportation. But secondly, on the non-detained docket, unlike on the detained docket, a deportation order very often doesn’t actually result in a deportation. So if you’re not imprisoned at the time you get a deportation order, it might very well be that the government decides not to pursue your deportation at all. It might realize that you’re actually not a priority for deportation, it might just not get it together to pursue your deportation, or you might decide not to appear for deportation and it might not actually come and try to arrest you.
And so, we have a large population of people living in the United States with final orders of deportation. And all of this is to say that if what you’re focused on as the Trump administration is deporting as many people as possible, you might be a little bit less focused on generating new deportation orders on the non-detained docket than on other parts of the enforcement system.
Matt Grossmann: The other part of the paper with resonance now is just placing this part of the bureaucracy within the executive branch versus a quasi-judicial function that it’s serving. So don’t give us the full history, but place us a little bit how we got a very large set of agencies, adjudication courts, in the bureaucracy, how often the president has been able to control their behavior, and where we’re sitting now relative to historical precedent and the first Trump administration.
David Hausman: Yeah. I think for the government, there are some clear advantages to using parts of the executive as quasi-courts, tends to be cheaper, tends to be, in that sense, more efficient for the government, and the government does get to control it. Now, usually, as in the case of the immigration courts, there is an eventual possible appeal to a real court within Article III within the judicial branch. But again, as in the case of the immigration courts, it ends up being a small fraction of cases that are in fact appealed. So this is a way to handle huge case volumes for the government that doesn’t involve appointing lots of new judges with life tenure.
Now, the question of how much these administrative adjudications have been controlled by the government in the past is interesting, and I’m not sure how much I can do in terms of generalization there. But maybe the key thing to say is just there was this decision from the Supreme Court today which really upends all of this in a dramatic way. So just today, the Supreme Court stayed an injunction and allowed the Trump administration to fire members of the Merit Systems Protection Board and the National Labor Relations Board, and in doing that, we are seeing a real sea change in terms of how much the president can actually control what were previously understood to be pretty independent adjudicatory systems. So we might be at this real inflection point, where suddenly these executive adjudications really are being controlled by the executive and aren’t quasi-independent in this way they were in the past.
Matt Grossmann: So another possible reading of your paper for current events is that you reviewed a very important policy initiative of the first Trump administration and you found mixed success, but mixed success mostly through traditional channels rather than through some grand innovation. How much should we take that reading and its implications for today?
David Hausman: I would be the first person to say that the implications of our paper for today are limited and that drawing inferences from the first Trump administration about the second Trump administration is a losing game. We’re seeing it over and over and over again, we really have a completely different approach from this administration, a very different set of people involved, and a disregard of pre-existing rules and norms that is qualitatively different from the first time around. So in that sense, I think our paper is a very poor guide to what’s going on now.
There are maybe a couple of things we can learn from it. I think first of all, we are likely to see a second attempt at just hiring lots more immigration judges to get more deportation orders, I think that’s likely to happen. Then I think there’s a good chance that it will be different this time around in terms of their ability to select different people to be immigration judges, and our paper might shed some light on that too, because we discussed what the safeguards were the first time around, and I think if they are successful this time around, we’re likely to see them disregard those safeguards in various ways. Then finally, we’re definitely seeing that changing the rules can work if you want to change enforcement patterns, so I think we’re likely to see that as well.
In a way, zooming out here beyond the immigration courts, in terms of if we want to ask what’s going to happen in the Trump administration’s mass deportations effort, I think we need to look beyond the immigration courts and think about the other kinds of administrative hurdles that they face, the hurdles that they face in making the number of arrests that they would need for mass deportations, in detaining the number of people they would need for mass deportations, and in actually conducting the deportations themselves and running those flights. Those administrative hurdles are really, really big, and that does tie back to our capacity finding in the immigration courts. But I think the most important aspects of that mass deportations effort to watch are probably outside the immigration courts.
Matt Grossmann: So you’ve made the case that the second Trump administration is pretty aberrant, but you also mentioned that the Democrats weren’t that far from the Republicans on some of these policy goals by the end of the Biden administration. And I know that the previous Democratic presidents have also been called deporter-in-chief at times, and the current Trump administration is just arguing that they’re responding to an influx that occurred during the Biden administration. So to what extent is this a developmental process driven by actual immigration versus a sea change in policy?
David Hausman: I think it’s really important to acknowledge that there was a huge change in the number of people arriving in the United States during the Biden administration. This happened post-pandemic. There are a lot of interesting questions about what drove the surge in border crossings between 2021 and 2023, but there was, without any question, a huge surge in border crossings, and there clearly was a political backlash to that that led the Biden administration eventually to put in place a rule that essentially ended asylum at the southern border. So in that sense, the parties ended up relatively close on border policy. Where the parties are really far apart and where what the Trump administration is doing is so remarkable is in the new administration’s efforts to ignore legality in terms of deporting people who are already in the United States, and there, I think there’s a really large difference between the parties.
Matt Grossmann: So now, I know you’re working on a data resource to make more information available about deportations, tell us about that and what you’re learning so far.
David Hausman: Yeah. So in doing work like this paper, I ended up spending a lot of time in the various data sets that the immigration enforcement agencies collect in order to do their work. And recently, I was able to get some funding to work with a Freedom of Information Act attorney and some other colleagues to start the Deportation data Project. You can visit our website at deportationdata.org and download the data sets that we’ve put there. What we’ve tried to do is gather all of the individual level immigration enforcement data sets that we know of from Customs and Border Protection, Immigration and Customs Enforcement, and the immigration courts, put them all up on that website. We’re working on providing more documentation for them, there’s not too much there so far. And what we are doing is seeking updates to those data sets as frequently as we can by Freedom of Information Act request, and then if necessary, by litigation of those requests as well. And our hope is that social scientists will use these data sets, along with journalists and policymakers as well.
Matt Grossmann: So if we were tried to not make you issue a firm prediction here, but Donald Trump did promise mass deportations, how likely is he to succeed and how much is it going to depend on the legality versus the just infrastructure?
David Hausman: I obviously don’t know what’s going to happen. A lot also depends on how you define mass deportations. Maybe the place to start is where we are, a few months into the administration. We’ve seen real increases in enforcement. One way we’ve seen that is that many fewer people are arriving at the border in the first place. But the other way we’ve seen that is that there are lots more arrests within the interior of the United States and more people being detained in the interior and more people being deported from the interior. That said, we’re at the moment still short of enforcement levels in the interior during President Obama’s first term, at the time when, as you said, he was known as the deporter-in-chief. So at the moment, I think we’re not in a place that’s close to what the administration has promised or threatened in terms of mass deportations.
Whether it can get there depends on a combination of these legal and resource questions, and let me give you an example of that. So anytime the government arrests someone, it needs a detention bed to hold that person while it pursues their deportation, and in many cases, that person is eligible to seek bond, to seek release from detention. If that person does get bond, then they end up in the non-detained immigration court process. That process takes years to complete, and then, as I said earlier, often the government doesn’t actually pursue the deportation of people who are ordered deported in that non-detained process. So if the government starts arresting lots of people who are eligible for bond, it’s using its resources for those arrests and for detaining those people for some period before their bond hearings, and it’s getting very little out of that beyond potentially terrorizing immigrant communities. And so, that’s a resource constraint, but it’s also a legal constraint, because being eligible for release from detention is a legal matter, and we’re already seeing the administration trying to limit the groups of people who are eligible for bond.
So it’s all tied up together. The administrative constraints are heightened by the legal constraints, and vice versa. My best prediction is that this administration hasn’t shown a talent for accomplishing large administrative tasks and that we’re not likely to see deportations on that mass scale, and that instead, we’re likely to see the use of immigration enforcement to try to spread fear and to undermine rule of law norms.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available bi-weekly from the Niskanen Center. And I’m your host, Matt Grossmann. If you liked this discussion, here are the episodes you should check out next, all linked on our website. Is Trump redirecting or deconstructing the administrative state? Can judicial review stop a lawless executive? What the Trump nominations and transitions foretell. Will Trump have unilateral power or just pretend he does? And how administrative burdens undermine public programs. Thanks to John Dearborn and David Hausman for joining me. Please check out Contesting the Reach of the Rights Revolution and Executive Control of Agency Adjudication, and then listen in next time.