Due process, a cornerstone of the U.S. Constitution, ensures fair treatment before the government deprives individuals of life, liberty or property. However, amid misconceptions and online allegations of due process violations, mainly as they apply to illegal immigration, it’s time to address administrative law, which branch of government holds administrative authority, and, most importantly, how due process is applied under administrative law.
Enumerated and standardized by the Administrative Procedures Act, administrative law is the branch of public law that governs the activities, powers, procedures, and oversight of federal administrative agencies operating under the executive branch—such as the Department of Homeland Security, Customs and Border Patrol, and Immigration and Customs Enforcement.
In simple terms: When Congress passes a broad law saying “protect the environment” or “ensure safe workplaces,” it doesn’t write every detail or handle individual cases. Instead, it creates specialized administrative agencies and delegates authority to them to fill in the details through regulations. These regulations or “rule changes” often vary from president to president and dictate everything from how laws are enforced to the way disputes are resolved.
According to the Supreme Court, administrative rules governing dispute resolution constitute a form of due process.
“Due process is flexible and calls for such procedural protections as the particular situation demands.” – Mathews v. Eldridge
This is why the application of due process varies so sharply from criminal trials to administrative proceedings. Administrative proceedings reflect the “need for efficiency in modern governance.”
While many might imagine that due process in an immigration case should look something like they’ve seen on the big screen, the reality is much closer to a day at the DMV.
In criminal law, protections are robust: jury trials, confrontation of witnesses, appointed counsel and proof beyond a reasonable doubt safeguard against severe penalties like imprisonment.
Administrative law, however, handles regulatory matters, benefits and enforcement through executive agencies. Here, due process is more pragmatic, balancing individual rights with government efficiency.
The executive branch, led by the president, administers these processes under Article II of the constitution, executing laws passed by Congress. For instance, the Department of Homeland Security and Justice Department oversee immigration proceedings, including expedited removals.
Expedited Removal, authorized by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, allows DHS officers to deport certain noncitizens without a full hearing. Codified in the Immigration and Nationality Act Section 235(b)(1), it targets those lacking valid entry documents or using fraud, especially recent entrants present less than two years without admission or parole.
As of January 2026, DHS has expanded this nationwide, rescinding prior rules that limited ER to 100 miles from borders or 14 days of presence.
The process is swift: Officers issue removal orders after screening, with detention pending deportation. It also imposes five-year reentry bars.
Yet, robust safeguards still exist. Those expressing fear of persecution or torture receive credible fear interviews by U.S. Citizenship and Immigration Services asylum officers. A positive finding shifts cases to full removal proceedings before immigration judges in the Executive Office for Immigration Review, allowing evidence presentation and appeals.
While various NGOs and aligned law firms are currently attempting to alter ER law and administrative rules through sue and settle agreements – claiming that expedited removals violate due process – courts have upheld it as constitutional in administrative contexts—backed by the legal framework of the 1976 Mathews v. Eldridge Supreme Court decision.
This differs from criminal due process, where fundamental fairness demands more. Concerningly, Expedited Removal does not apply to those alleged of criminal activity or charged with crimes. To the frustration of many Trump supporters and law enforcement officers alike, criminal grounds trigger formal hearings as the “worst of the worst” are actually afforded more rights under U.S. laws—significantly slowly down the process of deportation.
In addition, Expedited Removal does not apply to visa overstayers, or long-term residents proving two-plus years’ presence while asylum claims (the vast majority of cases paroled into the United States under President Biden) halt the process entirely—aligning with international non-refoulement obligations.
Proponents say administrative due process enables the swift handling of millions of cases annually, from Social Security benefits to labeling permits from the EPA.
Opponents, including advocacy-based law firms that recoup millions annually in taxpayer funded Equal Access to Justice Act awards, cite backlogs, detention hardships, and allege that administrative procedure is a violation of the Fifth Amendment.
While cases like Make the Road New York v. Huffman could bypass the authority Congress has delegated to the Executive branch, the Supreme Court has continued to affirm administrative processes meet constitutional muster when fair and context-appropriate.
However, if the federal government and the roles of its agencies are to continue to expand as they have, with each new social program or Congressional Act, balancing individual rights with the flexible utility of administration will continue to challenge the boundaries of U.S. law.
