WASHINGTON — Build more wall. Restore Trump-era immigration policies. Or simply close the US-Mexico border.
Republicans in Congress argue that President Joe Biden already has all the authority he needs to stem the flow of migrants through the U.S.-Mexico border. They argue that a bipartisan deal the president negotiated with senators to expand his authority will almost certainly be defeated.
The reality about Biden’s power to control migration is much more complicated.
Without changes to immigration laws or more funding to manage the growing number of migrants arriving at the southern border, not much of what Biden can try will stick — just as was the case for presidents before him.
“President Biden needs Congress to address the situation at the border,” said Kathleen Bush-Joseph, a lawyer and policy analyst at the nonpartisan Migration Policy Institute. “That’s the simplest way to say it.”
The $118 billion bipartisan proposal in Congress would overhaul the asylum system to allow for faster and stricter enforcement, and give presidents new powers to immediately deport migrants if authorities become overwhelmed by the number of people seeking asylum . It would also add $20 billion in financing – a huge influx of cash.
The package, which combines border enforcement policies with war aid to Ukraine, Israel and other U.S. allies, would be the most significant immigration legislation in a decade. It has the potential to transform, for better or for worse, some of the most vexing border problems. And until recently, it seemed like it had a chance of success. Donald Trump’s allies want the deal to fail largely because the Republican presidential candidate is loathe to hand Biden a victory on immigration. Trump wants to hammer the president on the issue during the campaign.
“Just a few months ago, Republicans were asking for exactly this bill to address the border, to provide support to Ukraine and Israel. And now it’s here. And they say, ‘It doesn’t matter. Never mind.” Biden said on Tuesday.
House Speaker Mike Johnson said Tuesday that he would not introduce the bill in its current form in the House of Representatives. He said it would act as a “magnet” for illegal immigration, that the power to close asylum was “full of loopholes” and that the release of migrants to the US would only continue.
“Giving extraordinary authority to the architect of the catastrophe will do no good,” Johnson said.
Elise Stefanik, a Republican from New York, wrote on X, formerly Twitter: “Biden has the power to end the border crisis without Congress. He just doesn’t want to.”
But immigration officials don’t have expanded detention capacity unless they get more money for detention. They also cannot hold families in detention for more than roughly three weeks under a long-standing policy, and they cannot legally live with single adults and families for security reasons.
Biden has already used his unilateral powers to address the border in multiple ways.
According to the Migration Policy Institute, the Biden administration has taken more than 500 executive actions on immigration since taking office, more than Trump has done in four years as president. Some policies have been successful, but crossings have continued to rise to record numbers.
His administration’s approach has been to combine new humanitarian routes for migrants with a crackdown on the border, to try to discourage migrants from making the dangerous journey to the U.S.-Mexico border on foot. He has also tried to make the issue more global, using his foreign policy experience to broker agreements with other countries.
And the administration has moved to limit asylum through a proposed federal rule. But that policy is currently mired in lawsuits, much like what Trump has stymied during his time in office. A change in the law by Congress would make these lawsuits less frequent and less successful, and a cash infusion would allow more workers to be hired to clear the backlog.
“It’s simply not true that Biden could do this alone. There are simply not enough asylum agents,” said Taylor Levy, an immigration attorney who spent years at the U.S.-Mexico border.
Biden could say he would completely close the U.S.-Mexico border, but billions of dollars would be lost or delayed in trade, and the U.S. would be violating international laws governing what a country must do with refugees.
As for some of the other policies, they probably won’t be easily restored either, even if Biden wanted to, which he doesn’t.
The Title 42 policy put in place by Trump was based on special powers granted to a president during a public health emergency. It gave border agents the ability to immediately turn away many asylum seekers. Those powers disappeared when the national emergency related to the pandemic was ended by Congress last May.
The so-called “Remain in Mexico” policy, implemented by the Trump administration, forced asylum seekers to wait out their claims in Mexico in squalid camps riddled with crime and disease. But that deal depends on Mexico’s cooperation, and President Andrés Manuel López Obrador has hinted that talks with the US on migration could suffer after reports of a US investigation into suspected drug money donations to his 2006 campaign.
As for the border wall, Trump tried to build some without congressional approval. He declared a national emergency so he could divert billions of federal dollars from military construction and other purposes, after Congress approved only a fraction of the money he demanded. The issue was challenged in court almost immediately, reaching all the way to the U.S. Supreme Court.
Anna Cabot, director of the immigration clinic at the University of Houston Law Center, said reinstating the Title 42 rules would require action from the director of the Centers for Disease Control and Prevention and some kind of justification, such as the coronavirus . Even then, there would be a lawsuit. As for the “Remain in Mexico” policy and the “emergency” border wall construction, both would be “immediately embroiled in most likely losing lawsuits,” she said.
The bipartisan bill has received broad support, including from the Border Patrol union, although some Democrats and immigrant advocates say it is far too restrictive and would change the U.S.’s role as a haven for refugees.
But Biden has said this is the best effort yet to stem the steady flow of migrants that is straining an already broken system.
He even went so far as to adopt Republican language, saying he would “close the border” when given the authority to do so. And on Tuesday, he questioned why Congress seemed unwilling to give him the tools to control growing numbers at the border, accusing Republicans of being too afraid to stand up to Trump in a issue that is of crucial importance to the country and also to the world. .
“Republicans have to decide. Who do they serve? Donald Trump or the American people?” he asked.