Trump Couldn’t Shut Down the Border. Can Biden?
President Biden is pleading with Congress for new authority to shut down the nation’s overwhelmed southern border, declaring that he has done “all I can do” and urging lawmakers to “give me the power” to fix it.
“We don’t have enough agents. We don’t have enough folks. We don’t have enough judges,” Mr. Biden said on Monday. “Why won’t they give me the help?”
A Senate bill introduced over the weekend tries to do just that. But it is fiercely opposed by House Republicans, who insist the president has simply failed to wield the power over immigration that he already has.
While it is true that there are some steps Mr. Biden could take without Congress, the idea that he has unfettered power to seal the country off is far too simplistic. The United States also has laws that require the government to consider asylum claims from people fleeing persecution. Any attempts to circumvent that would almost certainly face legal challenges.
The proposed legislation would clear away legal, practical and financial roadblocks to stiffer enforcement at the border that both parties say they want.
Veterans of decades of political and policy debates over immigration said the bill would give Mr. Biden explicit new authority to deny asylum claims, expel people from the country more quickly and keep track of migrants while they are in the United States.
It would also provide the resources that Mr. Biden has been asking for over the past three years, including thousands of new border patrol agents, asylum screeners and immigration judges.
“The idea that the president could accomplish most or all of this through executive authority is just flatly wrong,” said Ben Johnson, the executive director of the American Immigration Lawyers Association. “By every measure, constructive solutions using executive authority alone just don’t exist in this particular moment.”
The biggest change in the bill would require the government to declare an immigration emergency if the average number of migrants exceeded 5,000 over the course of a week or 8,500 on any given day.
Once that emergency is declared, the government would be barred from considering asylum claims from people who cross into the United States between official ports of entry. Most would be quickly turned back across the border into Mexico.
House Speaker Mike Johnson and other Republican critics of the Senate bill say it is unnecessary because of a longstanding section of immigration law known as 212(f), which says that presidents can suspend, by proclamation, immigration for anyone they determine would be “detrimental to the interests of the United States.”
Mr. Trump used that authority to impose a Muslim travel ban during his presidency.
On Monday, Mr. Johnson declared the bill “DEAD on arrival” in the House and said Mr. Biden had refused to use “his broad executive authority to end the border catastrophe that he created.”
But immigration lawyers said courts had ruled that the government’s power under 212(f) must be balanced against other immigration laws, including the legal requirement to consider asylum for anyone who asks for it.
Without specific legislation like the Senate bill, they said, Mr. Biden’s attempts to shut down asylum consideration could quickly be mired in court challenges.
Mr. Biden could also try to use a different immigration provision, known as Title 42, that allowed Mr. Trump to declare a public health emergency at the border during the Covid pandemic. But Mr. Biden lifted Title 42 after the pandemic receded, and the legal pathway for using it again would be uncertain without an ongoing public health crisis.
During Mr. Trump’s tenure, his administration repeatedly sought to reduce the number of people granted asylum by reducing resources and changing the interpretation of existing asylum laws. But the Senate bill would create an entirely new review process for those seeking asylum, and would for the first time write tougher standards into immigration law.
Under the new system, asylum officers would be required to determine whether there was a “reasonable possibility” that migrants would face persecution in their home country, rather than just a “significant possibility.” Supporters of the bill in both parties said that change would make it far more likely that an asylum claim was rejected and the person expelled.
Immigration experts said that Mr. Biden probably could have taken some steps without the legislation. For example, the bill dramatically expands the number of migrants who are made to wear ankle bracelets while their immigration case is processed. Mr. Biden could have done that without the legislation.
The bill also requires that children 13 and younger who are detained at the border are provided lawyers. That is a change the administration could have made at any time.
But all of those changes require money. Mr. Biden had originally requested $14 billion in border funding that would have helped to pay for those kinds of programs, but Republicans rejected the request out of hand. Several immigration advocates said approval of nearly $20 billion in the Senate legislation would help pay for programs that the government could not afford without it.