Immigration as a Test Case for Executive AI Governance | Lawfare

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Camille J. Mackler

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In the wake of the Sept. 11, 2001, attacks, the PATRIOT Act and the Homeland Security Act were enacted as urgent responses to reorganize and bolster the U.S. counterterrorism apparatus. Some of these authorities were intended to be temporary emergency measures. Subsequent reauthorizations and agency practice, however, transformed key elements of those laws into enduring infrastructure through which domestic surveillance expanded, became normalized, and ultimately extended well beyond the terrorism-related purposes that initially justified them.<br>Much of that infrastructure was first deployed to target noncitizen communities, among whom constitutional protections are weakest, judicial review is most deferential, and political accountability is limited. The watchlisting systems, biometric databases, and information-sharing networks developed in immigration enforcement did not remain confined there. Today, they have become part of the broader surveillance architecture that affects everyone.<br>Once again, these systems are being developed and normalized first on noncitizens before expanding to all. The Department of Homeland Security (DHS) is now deploying artificial intelligence (AI) systems that already exhibit many of the governance problems AI scholars warn could emerge as more capable systems enter government. These systems operate at a speed that can outpace meaningful oversight. They make accountability more difficult when decisions go wrong. And they do so with remarkably little public visibility into how they function or how they are used.<br>Records produced through recent Freedom of Information Act (FOIA) litigation by Just Futures Law, Pangea Legal Services, and Mijente show that Immigration and Customs Enforcement (ICE) operated roughly 42 AI tools internally as of May 2024, but only 23 tools appeared in DHS&rsquo;s public AI Use Case Inventory at the time. Customs and Border Protection (CBP) operated approximately 75 AI systems in the same FOIA-era records, 62 of them active, a figure that has since converged with CBP&rsquo;s public inventory page, which lists roughly 60 active use cases.<br>Taken together, these gaps are a live example of how AI is already reshaping the exercise of executive power.<br>In a recent article, Cullen O&rsquo;Keefe, Alan Rozenshtein, and Christoph Winter introduced the concept of &ldquo;ExecAI:&rdquo; the use of advanced AI systems within the executive branch and the ways those systems could erode the separation of powers. They ask what happens when presidential directives can be executed without the institutional friction that human decision-makers often provide: opportunities for dissent, whistleblowing, meaningful attribution when errors occur, and enough time for courts to intervene.<br>The piece presents these as emerging challenges, but the immigration system offers a concrete case study because it already combines broad executive discretion, limited constitutional protections, and the rapid adoption of AI-enabled decision-making.<br>What Is Already Operating<br>The federal government has not needed frontier AI to begin reshaping executive power. It has done so through ordinary procurement and existing immigration authorities.<br>ImmigrationOS, ICE&rsquo;s operational platform, combines government records and commercial data into a single picture that helps prioritize enforcement targets. Hurricane Score, an algorithm previously used in ICE&rsquo;s Alternatives to Detention program, estimated the likelihood that participants would abscond based in part on demographic and case-related information, including characteristics that raise significant equal protection concerns. And the U.S. Citizenship and Immigration Services (USCIS) Asylum Text Analytics tool flags asylum applications for additional scrutiny and monitors attorneys and preparers as a network rather than reviewing cases in isolation.<br>FOIA records show USCIS expanded the tool nationally before the Privacy Impact Assessment required by the E-Government Act had been approved. Applicants are not informed when their case has been flagged, and officers must obtain special authorization before raising AI-derived findings during an interview.<br>These systems differ in purpose and design, but they reflect the same broader trend. AI is increasingly embedded in decisions about whom the government investigates, monitors, or subjects to additional scrutiny, often with limited public understanding of how those decisions are made.<br>Three Missed Opportunities for AI Governance<br>The FOIA records also point to three opportunities where governance could have altered this trajectory.<br>Under the Office of...