The bill would deny asylum applications to illegal border crossers if there are more than 2,500 illegal border crossing attempts per day. Asylum seekers would still be able to make appointments and use other legal means to submit asylum applications. The bill would come under immediate legal attack. (The administration argues that it makes significant humanitarian exceptions and provides alternative pathways for asylum seekers that would help it defend the order in court.)
Biden drew a clear contrast with Trump, saying, “I’ve never demonized immigrants. I’ve never said that immigrants stain our blood. I’ve never separated children from their families at the border. I’ve never banned people because of their religious beliefs.” He emphasized, “I wanted to address this issue through bipartisan legislation. That’s the only way we’re actually going to fix the system as it is.” But he stressed that Republicans made that impossible.
“The decision to sign the order follows months of debate within the administration largely about the legality of such an order,” The Wall Street Journal reported. “Mr. Trump tried to enact a nearly similar ban in 2018, but multiple federal courts blocked it, finding it violated asylum law that allows people to seek humanitarian protection regardless of how they enter the country.” There is little reason to think that Mr. Biden’s actions would stand up more in court.
The administration’s logic for pursuing legally questionable tactics is simple. What do you want us to do? “For three years, America’s border security has been crippled by Republican opposition to the law enforcement resources President Biden wanted,” the White House explained in a memo accompanying the announcement. “For three years, Joe Biden has led border security, but Republicans in Congress have blocked it in the name of politics.” While acknowledging that a “permanent” solution (let alone new funding allocations) would require legislation, the administration argues that Republican obstruction left it no choice.
Memories are fading, but it’s worth recalling how Biden got to this point. With Rep. Kevin McCarthy (R-Calif.) still speaker, the White House began negotiating a tough border plan in September as part of a government shutdown plan and later as part of additional funding bills for Ukraine, Israel and Taiwan. After McCarthy was ousted, talks moved 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.
after that, Just two weeks ago, Democrats brought immigration legislation back to Congress, but Republicans filibustered it. So whatever legal flaws Biden’s latest effort may have, Republicans have no standing to complain. Republicans supported a substantially similar measure under the Trump administration, failed to pass a border security bill despite holding majorities in both houses of Congress, and have repeatedly blocked legislation addressing the issue.
Immigration activists and Biden’s left wing will not be pleased with any measures that limit asylum applications. But White House officials have suggested that Biden will continue to press for comprehensive immigration reform and use executive power to address issues they worry about, such as the reinstatement of Deferred Action for Removal for young immigrants. And in the meantime, if immigrant rights activists are seen as unhappy with the White House’s tough new stance, that may not be the worst thing for Biden’s general election prospects, where a large proportion of voters want tougher border control. (As a political matter, Biden’s campaign will likely relish the irony: If he were an immigrant, a felon like Trump would be denied entry or deported for a fraud conviction; felons are barred from entering some 40 countries.)
Moreover, the contrast between Biden’s efforts to govern and Trump’s efforts to disrupt (rejecting immigration solutions, attacking the courts, threatening retaliation against his enemies, etc.) is one his team is happy to highlight. In the week since Trump’s conviction last Thursday, Biden defended the rule of law, announced a plan to resolve the Israel-Gaza war, made a last-ditch effort to avoid Republican obstruction at the border, and visited France on the anniversary of the Normandy landings (where, unlike his opponent, who called fallen servicemen “idiots” and avoided an appearance at the Aisne-Marne American Cemetery in Belleau because of the rain, Biden honored those who made the ultimate sacrifice).
This executive order will not be the last White House action on the border. With the border plan facing legal criticism, Biden may return to Congress this summer and plead with them to do their jobs and pass an effective immigration package. Biden will surely seize the opportunity to highlight his good-faith efforts to address the border and the Republican Party’s astonishing hypocrisy.
