The measure would deny asylum requests from those who illegally cross the border, if illegal crossing attempts exceed 2,500 per day. Asylum seekers can continue to make appointments and use other lawful means to submit asylum claims. The measure will come under immediate legal attack. (The administration argues it has made significant humanitarian exceptions and provided alternative pathways for asylum seekers, steps that will help defend the order in court.)
In setting up the stark contrast with Trump, Biden said, “I will never demonize immigrants. I will never say they are poisoning the blood of our country. I will never separate children from their families at the border. I will not ban people because of religious beliefs.” He emphasized, “I would have preferred to address this issue through bipartisan legislation. That’s the only way to actually get the kind of system we have now fixed.” But Republicans have made that impossible, he stressed.
“The decision to sign the executive order follows months of debate inside the administration in large part on the legality of such an order,” the Wall Street Journal reported. “Trump sought to enact a nearly identical ban in 2018 but was blocked by several federal courts that ruled it was a violation of asylum laws, which allow people to ask for humanitarian protection no matter how they enter the country.” There is little reason to think that Biden’s action will hold up any better in the courts.
The administration’s logic in pursuing a legally questionable tactic is simple: What would you have us do? “For 3 years, America’s border security has been devastated by congressional Republican opposition to the law enforcement resources that President Biden has sought,” the White House explained in a memo accompanying the announcement. “For 3 years, Joe Biden has led on border security and congressional Republicans have obstructed it — all in the name of politics.” While conceding legislation is needed for a “permanent” fix (not to mention to allocate new funds), the administration argues it has been left no choice as a result of Republican obstruction.
Memories fade, but it’s worth recalling how Biden got to this point. When Rep. Kevin McCarthy (R-Calif.) was still speaker, the White House began negotiations in September on a tough border plan as part of the shutdown fight and later in the context of the supplemental funding bill for Ukraine, Israel and Taiwan. When McCarthy got booted, negotiations shifted to the Senate, where months of negotiations spearheaded by right-wing Sen. James Lankford (R-Okla.) produced the toughest border bill in recent memory. Republicans killed it.
Then, just two weeks ago, Democrats brought the immigration bill back to the floor. Republicans filibustered it. So, whatever the legal infirmities of Biden’s latest effort, Republicans are in no position to complain. They backed virtually identical measures under Trump, didn’t passed a border security bill when they held majorities in both houses of Congress and repeatedly blocked legislation that would have addressed the issue.
Immigration activists and Biden’s left flank will not be pleased with any measure that limits asylum requests. However, White House officials suggest Biden will continue to raise the necessity of comprehensive immigration reform and use executive powers to address issues that concern them (e.g., Deferred Action for Childhood Arrivals recipients). And in the meantime, if immigrants’ rights activists are seen as dissatisfied with the White House’s tough new stance, that might not be the worst thing for Biden’s general election prospects, where a large segment of voters want tougher border controls. (As a political matter, the Biden campaign will relish the irony. If he were an immigrant, a felon such as Trump might be denied entry or deported after a fraud conviction. Felons are barred from entering nearly 40 countries.)
Moreover, the contrast between Biden’s efforts to govern and Trump’s efforts to sow chaos (e.g., nixing an immigration solution, attacking courts, threatening retribution against enemies) is one the Biden campaign is happy to underscore. In the week after Trump’s criminal conviction last Thursday, Biden was seen defending the rule of law, rolling out a plan to resolve the Israel-Gaza war, making a last-gasp effort to maneuver around GOP obstruction on the border and traveling to France for the anniversary of D-Day (where, unlike his opponent, who called military men and women who gave their lives “suckers” and ducked an appearance at Aisne-Marne American Cemetery in Belleau due to the rain, Biden honored those who made the ultimate sacrifice).
The executive order is likely not the last border move from this White House. As the border plan comes under legal fire, Biden might well choose to return to Congress this summer, imploring them to do their jobs and pass effective immigration measures. He almost certainly will seize any opportunity to highlight his good faith efforts to address the border and Republicans’ jaw-dropping hypocrisy.
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