President Biden is expected to sign an executive order on Tuesday authorizing the temporary closure of the border with Mexico if there is a surge in migrant inflows, a move that would end long-standing protections for asylum seekers in the United States.
Biden’s senior aides have briefed lawmakers in recent days on the steps to come and told them they expect the president to work with South Texas mayors to sign the executive order, according to people familiar with the plans.
“I’ve been briefed on this executive order,” said Rep. Henry Cuellar, a Texas Democrat who has criticized Biden for not stepping up border enforcement early in his presidency. “I’ve been advocating for these measures for years, so of course I support them. This order has not yet been released, but I support the details that have been provided so far.”
The executive order would be the toughest border policy introduced by Biden, or any Democrat in the modern era, and is reminiscent of President Donald J. Trump’s 2018 attempt to halt immigration, which was attacked by Democrats and blocked by federal courts.
While the order is almost certain to face legal challenges, Biden is under intense political pressure to address illegal immigration, a top concern for voters ahead of this year’s presidential election.
The decision illustrates how immigration policy has shifted sharply to the right during Biden’s term, with polls showing growing support even within the president’s party for border measures once denounced by Democrats and supported by Trump.
The order would allow the Border Patrol to block migrants from applying for asylum and immediately deny entry to people if crossings exceed certain thresholds. Administration officials discussed earlier this year allowing Biden to close the border if there were an average of 5,000 crossings per week or 8,500 crossings per day, but negotiators cautioned that the thresholds had not been finalized and could change. White House officials have focused on what would give Biden the authority to close the border.
On Sunday, the Border Patrol apprehended more than 3,500 migrants who crossed the border without authorization, according to a person familiar with the data. Sunday’s figures are in line with recent trends in crossings at the southern border.
The restrictions likely would not apply to minors crossing the border alone, according to officials briefed on the order.
The executive order would likely mirror measures from a bipartisan bill that was rejected earlier this year that would have been one of the most significant border security restrictions Congress has considered in years. The bill would have provided billions of dollars in funding for the border, including hiring thousands of asylum officers to process asylum claims.
But Republicans blocked the bill in February, saying it wasn’t strong enough — many of them egged on by Trump and reluctant to give Biden a legislative win in an election year. Biden aides believe the executive order could provide Democrats with another data point as they make the case to voters that they have been working on solutions at the border while Republicans have focused on politicizing the border.
“While Republicans in Congress stand in the way of increased border security, President Biden will not stop fighting to provide Border Patrol and immigration agents with the resources they need to secure our border,” White House spokesman Angelo Fernandez Hernandez said in a statement on Monday. The spokesman did not confirm the plan but said the administration is considering “a range of policy options” and “remains committed to taking action to address our dysfunctional immigration system.”
Administration officials have said they do not want any executive action and believe any order would be legally challenged.
“What we need is legislation,” Homeland Security Secretary Alejandro N. Mayorkas said last month.
“An executive action would be challenged,” he added, “I’m confident of that, and it will be a question of what the outcome of that process is. Legislation is a more certain solution.”
In a sign of how the politics have changed on the issue, Biden sharply criticized Trump’s policies during debates as a presidential candidate in 2019.
“This is the first time in the history of the United States that a president has had to ask for asylum in another country,” Biden said at the time. “We’ve never seen anything like this before.”
“You come to the United States and present your case,” he added. “That’s how you seek asylum based on the premise of why you deserve asylum under U.S. law.”
