Opinion: DHS is in for a rough ride after the election, no matter who wins

As the presidential election approaches, both Kamala Harris and Donald Trump have presented their visions for addressing U.S. border security. Despite the vast differences in their approaches, one thing is clear: no matter who wins the election, the Department of Homeland Security will face an overwhelming burden to implement the victor’s ambitious policies.

At the heart of the problem lies both the scale of these agendas and the immense strain they will place on an already overextended immigration system — a system that many politicians and policy-makers label as broken or failing . This burden will fall most heavily on DHS components responsible for managing and enforcing immigration and border security, including U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

Vice President Harris’s stance on immigration centers on expanded pathways for migrants to enter or remain in the U.S. Like President Biden, Harris will likely rely primarily upon executive authority (such as Temporary Protected Status and DHS’s parole authority) that would enable broad designated populations to seek temporary residence, with an aim at eventually providing a pathway to citizenship.

With regard to border security and enforcement issues, Harris stated during the recent presidential debate that she will prioritize targeted enforcement and the dismantling of criminal networks that exploit vulnerabilities at the border, such as human trafficking, drug smuggling and organized crime. In the past, Harris has expressed support for community-based alternatives to detention.

The hallmark of Trump’s immigration strategy reflects his belief that visible, strict and swift enforcement will strengthen border security and deter unlawful crossings. More specifically, he intends to turn away undocumented migrants at the border and increase funding for infrastructure and walls. He will initiate expanded deportation operations and deterrents, such as detention facilities and increased enforcement actions.

In addition to these measures, Trump has indicated he may reinstitute policies from his previous administration, including an expanded travel ban , reintroducing the de novo review of applications for extensions on existing grants of immigration benefits, and limiting DHS grants of employment authorizations . His agenda is broad and far-reaching, aiming for visible restriction on immigration.

To be sure, both candidates acknowledge the need for border security, but their agendas vary widely in execution and scope. These differences reflect the wide ideological gulf dividing U.S. voters, extending well beyond border security and into immigration policy. The two strategies suggest that the phrase “border security” means very different things to the two candidates.

For DHS, the crux of the issue is that the winning candidate will have to implement his or her policies through executive orders and similar exercises of executive authority. Decades of congressional inaction on border security and immigration legislation have left the department with outdated laws that neither reflect nor fund the current realities and demands on the system. The result is that presidential administrations continue to rely on tenuous, untested and, critically, unfunded executive edicts to compensate for congressional neglect, with DHS grappling to implement its ever-expanding responsibilities.

Regardless of who wins in November, DHS will face enormous challenges in executing one of these contrasting agendas. Immigration has become one of the most divisive and politically charged topics in the country, and each administration will undoubtedly feel pressure from Congress, advocacy groups and the media, as well as new waves of litigation.

For DHS, Harris’s agenda presents magnified but familiar challenges, particularly in seeking to manage the ongoing flow of immigration while expediting the processing of certain immigration cases deemed priorities. This prioritization (which has already been attempted under the current administration), will create further backlogs and longer wait times for others.

Trump’s plan, on the other hand, will rely on DHS and its enforcement capabilities to refocus and greatly expand its efforts. Deportations, expanded detention facilities and an increased emphasis on physical barriers will require significant financial resources, staffing and logistical coordination.

For the staff at DHS, the new administration will require a strong pivot in policy direction and priorities. This will occur whether the incoming president is from the opposing or the same political party because, in both instances, the newly elected president will aim to advance their own objectives and leave a lasting impact. Consequently, current initiatives will be expanded or abruptly revised or rescinded.  Despite these inevitable shifts, this all-too-familiar experience highlights the importance of DHS staff in in our roiling political landscape.

Morgan Bailey is counsel at Mayer Brown, LLP; previously she served as a senior official at the Department of Homeland Security.

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