People have been screaming at Joe Biden to “do something about the border” for two years. Biden now wants us to think he’s heeding that cry for action and will take drastic measures to curtail the chaos at the Southern border.
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The only problem is that the federal courts will never let him implement any of these changes because his open-border allies are going to sue the pants off of the president.
In theory, the executive order expected to be published today would drastically limit border crossings and shut down the border to asylum seekers once 2,500 asylum requests per day were made. We’re at that point now but no one expects Biden to close the border to asylum seekers for more than a day or two, if at all.
The border would reopen once the number of asylum seekers went down to 1,500.
Naturally, there will be exceptions to the new executive order. Children will be allowed to claim asylum, as will those suffering a medical emergency and victims of human trafficking.
“While congressional Republicans chose to stand in the way of additional border enforcement, President Biden will not stop fighting to deliver the resources that border and immigration personnel need to secure our border,” Angelo Fernández Hernández, a White House spokesman, said in a statement on Monday. He added that the administration was looking into “a series of policy options, and we remain committed to taking action to address our broken immigration system.”
Pay no attention to the first three years of the Biden presidency. We didn’t really mean all that open borders stuff.
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Homeland Security head Alejandro Mayorkas said, “Legislation is what is needed.”
“Executive action will be challenged,” he added. “I am confident in that. And then the question will be: What is the outcome of those proceedings? Legislation is a more certain delivery of solution.”
Stepping up to help Biden is the ACLU, which will once again lead the legal charge against any kind of limits on asylum.
“We will need to review the E.O. before deciding on litigation, but any policy that effectively cuts off protection for desperate migrants would raise serious legal problems, as it did when the Trump administration tried to end asylum,” said Lee Gelernt, a lawyer at the ACLU.
Administration lawyers have been planning to tap executive powers outlined in Section 212(f) of the Immigration and Nationality Act, which gives a president broad authority to block entry of certain immigrants into the U.S. if it is deemed “detrimental” to the national interest. It is the same legal rationale used by Trump to take some of his toughest actions on migration as president.
Mexico has been stepping up enforcement actions on its side of the border, which has slowed illegal crossings into the United States. But what Biden isn’t talking about is that the legal justification he’s using is exactly the same justification that Trump used to limit border crossings during his administration.
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While other border activity, such as trade, is expected to continue, the 1,500 threshold at which the border would reopen for asylum seekers could be hard to reach. The last time the daily average dipped to 1,500 encounters was in July 2020, at the height of the COVID-19 pandemic.
Senior White House officials, including chief of staff Jeff Zients and legislative affairs director Shuwanza Goff, have been informing lawmakers on Capitol Hill of details of the planned order ahead of the formal rollout Tuesday. But several questions remain about how the executive order would work, particularly how much cooperation the U.S. would need from Mexican officials to carry out the executive order.
Biden’s use of an executive order is all for show. Once the ACLU and other groups block enforcement of the executive order, Biden can throw up his hands and exclaim, “I tried! If those mean Republicans would just do as I ask, the situation would be under control!”
Border control theater is likely to have an extended run.