Biden to do what he couldn't do

Congress's failure to act does not constitute an emergency

Repeating the patterns of some past presidents, Joe Biden has suddenly found the authority to do what he said he couldn’t do before. A few weeks ago, as Congress debated a bill that would have reformed America’s broken immigration system, the Biden Administration argued that it didn’t have the authority to close the southern border unilaterally, yet the president signed an Executive Order on Tuesday that looks a lot like the bill that was killed by Republicans. Border crossings are down sharply this year but remain above pre-pandemic levels (and to be fair, they were rising under Trump before the pandemic).

It’s no surprise that Biden wants to take action on the border. The post-pandemic migrant surge has caused an influx of migrants that has become a major campaign issue, so much so that Donald Trump happily took the blame for torpedoing the bipartisan immigration reform bill.

Photo by 愚木混株 cdd20 on Unsplash

A big point of contention was that Republicans claimed that Biden already had the authority to take action on the border. Democrats claimed that he didn’t. Now Biden is taking some action so it is apparent the Administration now believes or has “found” some unused executive authority. How far does the new Executive Order go?

The Executive Order notes that Biden’s actions are temporary and will only take effect during periods when the southern border is overwhelmed. Those actions include “suspension and limitation” of the “entry of any noncitizen into the United States across the southern border.” There are some exceptions to the rule such as unaccompanied minors and victims of “a severe form of trafficking” as defined by federal law.

The rule takes effect on June 5 and will remain in place until “14 calendar days after the Secretary makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters.” In the future, the rules will kick in when there is a “7-consecutive-calendar-day average of 2,500 encounters or more.”

This may sound somewhat familiar. The recent attempt at immigration reform had a similar formula that would have been triggered at 5,000 illegal border crossings. Some Republicans interpreted this as allowing 5,000 border crossers to be released into the country. The authors of the bill disagreed.

“It’s not that the first 5,000 [migrants encountered at the border] are released, that’s ridiculous,” Republican Senator James Lankford said on the Senate floor. “The first 5,000 we detain, we screen and then we deport. If we get above 5,000, we just detain and deport.”

As Arizona Senator Kyrsten Sinema explained, “The reason we’re doing that [providing emergency authority] is because we want to be able to shut down the system when it gets overloaded, so we have enough time to process those asylum claims.”

Even though the trigger for a border shutdown is much lower than in the immigration bill, don’t expect Republicans to applaud it. I’ll explain why later.

So where did Biden find the authority to enact the border shutdown? The Executive Order cites sections 212(f) and 215(a) of the Immigration and Nationality Act (8 U.S.C. 1182(f) and 1185(a)) and section 301 of title 3, United States Code.

Section 212(f) states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Section 215(a) says in part, “It shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

Migrants will reportedly face a more stringent asylum screening. Those who don’t qualify to remain will be subjected to expedited deportation to Mexico or their home countries.

These laws would seem to give the president extremely broad authority to control immigration. Perhaps unconstitutionally broad.

The opposing view would be that these laws contradict other federal laws such as asylum law, which as I’ve noted in the past, establishes due process for asylum seekers regardless of whether they arrive in the US legally or illegally. There is also a boatload (pun intended) of court orders and injunctions that the government must comply with. If you wondered why the president didn’t just decree that all illegal border crossers shall be immediately deposited back across the border this is why. (The Advisory Opinions podcast did a good job of summarizing these laws and court orders a few months ago.)

The problem when immigration hardliners say “enforce the law” is that they only want certain laws enforced. But government officials and the courts have to consider all the laws, not just the ones that are popular on the right.

So does President Biden have the authority the shut down the border? Who knows? But he’s decided to roll the dice and ask for forgiveness than permission. He’s in a situation where doing something that may be enjoined by the courts is preferable to doing nothing, and there is a legitimate fig leaf in federal law for the move.

As a rule-of-law guy, I’m not thrilled about the move. In my view, it’s not a great idea to give a president broad authority to indefinitely suspend the law. Some latitude is necessary, but we’ve seen in recent years how emergency authority can be abused by unscrupulous executives. Congress is simply in the habit of delegating too much authority.

The Washington Post noted that the ACLU has already announced that it will challenge the policy. It may be that new aggressive rules are enjoined before they can even make a dent in immigration levels.

So President Biden might have the authority to suspend immigration laws… and he might not. At best, it’s a temporary fix.

I’ve said for quite a few years now that we can’t fix the illegal immigration problem without fixing the immigration system. And we can’t fix the immigration system without finding compromise between the two parties.

Among other things, we need more border agents, more immigration judges, and more detention facilities. We also need to reform the asylum system that has created an “attractive nuisance” that encourages illegal border crossing.

In recent years, I’ve had a realization.

What do the years 2005, 2007, 2013, and 2018 have in common? If you said they were all years when comprehensive immigration reform seemed possible, you get a gold star. If you said that they were all years in which Republicans killed immigration reform, you win the grand prize. (That’s despite support from some high-level Republicans.)

My realization is that I don’t think the Republicans want to solve the border crisis. I think they just want to complain about it.

I think the 5,000 number in the border compromise was too high because a lot of Republicans want the number of immigrants set at or near zero. If this sounds harsh, a number of Republican leaners have told me as much in conversations over the years.

That, along with the fact that the Order was signed by President Biden, is why Republicans will attack it. First, their assumption is that if it comes from Biden, it is automatically bad. Second, in their view, even the more restrictive policy isn’t restrictive enough.

The Great Republican Hope is that one day all illegals will deported with extreme prejudice, something that is currently illegal under US law. Donald Trump has promised mass deportations if re-elected, a policy that would require a dramatic and costly expansion of the police state and which would be an economic nightmare since about five percent of the workforce is made up of illegals.

I don’t know if Biden’s Executive Order will do much to curb illegal immigration. So far, the prospect of chasing the American Dream has led to more and more illegal immigration over the past few decades. The lure of possible asylum and life in the United States is powerful.

It’s also questionable whether the Order will help Biden’s approval. It’s likely that what he gains in the middle will be offset by turning off progressives.

We do have an illegal immigration problem, but we aren’t going to decree or deport our way out of it. The only way the border crisis is going to be resolved is when the two parties finally decide to work together to solve its underlying causes.

Either that or we could start a new pandemic.

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