Trump couldn't close the border. Can Biden?
President Biden is pleading with Congress for new authority to close the country's overwhelmed southern border, declaring he has done “everything I can do” and urging lawmakers to “give me the power” to close the border to recover.
'We don't have enough officers. We don't have enough people. We don't have enough judges,” Mr. Biden said on Monday. “Why don't they want to help me?”
A Senate bill introduced this weekend seeks to do just that. But it is strongly opposed by Republicans in the House of Representatives, who maintain that the president has simply failed to exercise the power over immigration that he already has.
Who is right?
While it is true that Biden could take some steps without Congress, the idea that he has unlimited power to shut down the country is far too simplistic. The United States also has laws that require the government to consider asylum claims from people fleeing persecution. Any attempt to circumvent this would almost certainly face legal challenges.
The proposed legislation would remove legal, practical and financial obstacles to stricter enforcement at the border, something both sides 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, deport people more quickly and monitor migrants while they are in the United States.
It would also provide the resources Biden has called 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 power is just plain wrong,” said Ben Johnson, the executive director of the U.S. government. American Association of Immigration Lawyers. “In any case, there are no constructive solutions using executive power alone at this particular moment.”
The biggest change in the bill would require the government to declare an immigration emergency if the average number of migrants exceeds 5,000 over the course of a week, or 8,500 on any given day.
Once that state of emergency is declared, the government would no longer be able to process asylum claims from people entering the United States through official ports of entry. Most would soon be sent back across the border to Mexico.
House Speaker Mike Johnson and other Republican critics of the Senate bill say this is unnecessary because of a longstanding section of immigration law known as 212(f), which says presidents can suspend immigration by proclamation for anyone they determine would be “detrimental.” for the interests of the United States.”
Mr. Trump used that authority to impose a travel ban on Muslims during his presidency.
On Monday, Mr. Johnson declared the bill “DEAD on arrival” in the House of Representatives, saying Mr. Biden had refused “to use his broad executive powers to end the border catastrophe he created.”
But immigration attorneys 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 requests it.
Without specific legislation like the Senate bill, they said, Mr. Biden's efforts to halt the asylum process could quickly fail in court.
Mr Biden could also try to use another immigration provision, known as Title 42, which would have 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 subsided, and the legal path to reusing it would be uncertain without an ongoing public health crisis.
During Mr. Trump's term in office, his administration has repeatedly tried to reduce the number of people granted asylum by cutting resources and changing the interpretation of existing asylum laws. But the Senate bill would create an entirely new review process for asylum seekers and write stricter standards into immigration law for the first time.
Under the new system, asylum officials would have to determine whether there was a “reasonable possibility” that migrants would face persecution in their home countries, rather than just a “significant possibility.” Supporters of the bill in both parties said change would make it much more likely that an asylum claim will be denied and the person deported.
Immigration experts said Mr. Biden likely could have taken some steps without the legislation. For example, the bill dramatically expands the number of migrants who must wear ankle bracelets while their immigration cases are processed. Mr. Biden could have done that without the legislation.
The bill also requires children 13 and younger who are detained at the border to be provided with an attorney. That's a change the board could have made at any time.
But all those changes require money. Mr. Biden had originally asked for $14 billion in border funding that would have helped pay for these types of programs, but Republicans rejected the request out of hand. Several immigration advocates said passage of nearly $20 billion in the Senate legislation would help fund programs the government wouldn't be able to pay for without it.