SMU Law Review
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
Debates over administrative law doctrine and practice have long occurred in the shadow of agency capture, a phenomenon by which private interests co-opt an agency’s public mission. Scholars posit that capture often operates through the migration of agency personnel to the very industries they previously regulated and vice versa, referred to as the “revolving door.” The tremendous administrative law literature on agency capture, however, has never systematically addressed the potential relevance of capture to immigration regulation and enforcement. Given the vastness of the immigration bureaucracy, the massive annual appropriations it commands, and immigration’s salience in public discourse, the possibility of capture in immigration law warrants the attention of scholars and policymakers.
This Article takes up that long overdue task. Through analyzing potential industry influence in different aspects of immigration regulation, it argues that capture plausibly operates in immigration regulation, although perhaps in surprising ways. Moreover, analyzing capture theory in immigration regulation offers several payoffs. First, it helps clarify the private and public interests implicated, as capture theory trains attention on ways that private interests dominate or thwart public interests. Second, it helps explain the tendency toward enforcement maximalism among line-level enforcement personnel across presidential administrations. Finally, it illuminates how the dynamics surrounding capture might guide decisions about where to lodge discretion in the bureaucracy.
Recommended Citation
Shalini Bhargava Ray,
Agency Capture in Immigration Law,
78
SMU L. Rev.
1045
(2025)
