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Does Biden Need A New Law To Shut Down The Border?

There is some bias in this article but overall it helped me to get a better perspective on the migration issue. (I wish it had gone into more detail about HR 2).

From The Washington Post:

“I’ve done all I can do. Just give me the power I’ve asked from the very day I got into office. Give me the Border Patrol. Give me the people, the judges. Give me the people who can stop this and make it work right.”

— Biden, remarks to reporters, Jan. 30

Biden “should sign an order right now to end the mass release of illegals and dangerous persons in our country.”

— House Speaker Mike Johnson (R-La.), in a letter to House Republicans, Jan. 26

“A Border Bill is not necessary to stop the millions of people, many from jails and mental institutions located all over the World, that are POURING INTO OUR COUNTRY …. I had the safest and most secure Border in U.S. History. I didn’t need a ‘Bill!’”

— Former president Donald Trump, in a social media post, Jan. 29

With migrants overwhelming Border Patrol — and causing an election-year headache for Biden — the president has said he needs a new law, now being negotiated in the Senate, to “shut down the border.” Trump, his apparent rival for the White House this year, and House Republicans such as Johnson counter that Biden already has enough executive authority to halt border crossings.

Article I, Section 8 of the U.S. Constitution gives Congress the authority to establish “rule of naturalization” — authority that has led the Supreme Court to conclude that Congress has “plenary” power over immigration and decisions on whether foreign nationals can enter or stay in the United States. The president is supposed to implement the laws passed by Congress — but the last major comprehensive immigration law was passed almost four decades ago. The country — and its immigration challenges — has changed enormously since then.

As president, Trump issued a raft of executive orders designed to stem illegal immigration — relying on a provision of the law that says the president can “suspend the entry of all aliens or any class of aliens” whose entry he finds “would be detrimental to the interests of the United States” — but many of his actions were struck down or altered by the courts.

Trump claimed he needed Congress to pass a new law, especially to make it more difficult for migrants to claim asylum. “What the Democrats should be doing now is they should be changing the loopholes,” Trump told reporters in 2019. “They should be changing asylum. I’ve been talking ... to you about this for a long time. They should be changing asylum.”

Let’s review the legal landscape.

The Facts

The border flow

There is certainly a surge at the border.

Customs and Border Protection has recorded about 8.5 million “encounters” between February 2021, after Biden took office, through December of last year. But that does not mean all those people entered the country illegally.

Some people were “encountered” numerous times as they tried to enter the country — and others (about 4 million of the total) were expelled, mostly because of covid-related rules that have since ended.

CBP has released more than 2.3 million migrants into the United States at the southern border under the Biden administration through September, the Department of Homeland Security said. These numbers, however, do not include “gotaways” — which occur when cameras or sensors detect migrants crossing the border but no one is found or no agents are available to respond. That figure could add an additional 2 million, bringing the total number of migrants arriving during Biden’s presidency to more than 4 million.

Republicans argue that Biden could take action now to stem the flow. A Trump campaign spokesman did not respond to queries, but Johnson’s office pointed to both a 2018 Supreme Court ruling, Trump v. Hawaii, and strengthened authority granted to the executive branch to secure the border under a 2006 law, the Secure Fence Act, that Biden voted for as a senator. Johnson’s office says there are actions — many resurrecting Trump-era policies — that Biden could take now.

“No one has argued that a President can’t use additional authorities, but when President Biden says he’s ‘done all I can do’ under current law, that’s simply untrue,” said Raj Shah, Johnson’s deputy chief of staff for communications. “The President can and should rescind his order reinstating catch and release, order DHS to reinstitute Remain in Mexico, negotiate asylum cooperative agreements, end parole abuses, use expedited removal, and implement other security measures under widely accepted and current legal authorities. The solution requires a President willing to implement policies and enforce the law.”

There’s a lot of jargon in that statement. We will try to unpack it, though be warned, immigration issues are complex.

Trump v. Hawaii

Trump v. Hawaii, decided in 2018 by a vote of 5-4, concerned Trump’s travel ban on Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. (Chad had been on the list but was removed shortly before oral arguments after the White House said the country had improved security measures.) The travel ban essentially halted the issuance of immigrant visas to the affected countries and restricted certain types of nonimmigrant visas, such as for tourism and business, though the protocol varied from country to country.

The law “exudes deference to the President in every clause,” wrote Chief Justice John G. Roberts Jr. for the majority. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions.”

That sounds sweeping. But there’s a catch. “That authority, and the case, was directed at migrants who had not yet arrived in the United States,” said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, a D.C. think tank that does research and analysis to improve immigration and integration policies.

Essentially, the court said a president had the authority to prevent the arrival of people he found might harm the United States. But once a person steps foot in the United States, with or without documentation, under the U.S. Constitution and Supreme Court precedent they are considered a “person” with the same due-process rights available to U.S. citizens.

“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term,” the Supreme Court said in Plyler v. Doe, a 1982 case about school funding for undocumented children. “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”

A migrant who arrives in the United States — “whether or not at a designated port of arrival” — may apply for asylum. Moreover, many international agreements and treaties, such as the Universal Declaration of Human Rights and the 1967 United Nations Protocol Relating to the Status of Refugees, also bind the hands of U.S. authorities when someone seeks asylum.

U.S. immigration courts are swamped by backlogs, so asylum seekers with pending claims are usually allowed to live and work in the United States while awaiting a response.

“Congress has not appropriated the resources necessary to approach preventing all unlawful entries, and from a practical perspective, I am not aware of any country that has succeeded in preventing all unlawful entries,” Bush-Joseph said, adding that Congress also has not appropriated sufficient funding to detain all migrants.

Trump’s policies on asylum seekers

Trump in 2018 signed a presidential memorandum that claimed he was ending “catch and release,” but that consisted mostly of pilot programs that quickly became tied up in litigation; authorities continued to release people into the country despite numerous announcements that “catch and release” had ended. Trump’s efforts to completely shut the border did not bear fruit until the coronavirus pandemic emerged in 2020 and he was able to turn away migrants by citing a public health emergency.

Trump took many other actions. In 2019, he instituted a program called Migrant Protection Protocols, commonly known as “Remain in Mexico,” that required migrants from countries other than Mexico to wait outside the U.S. territory, often in tent camps, to wait for their appointment in immigration court.

Biden sought to end the program as soon as he took office but only won final court approval in 2022. Johnson’s office listed reinstating “Remain in Mexico’ as a step Biden could take. The Mexican government, which has to agree to take back non-Mexican migrants, opposes a restart.

Before it was suspended, the program was used to send 70,000 migrants back to Mexico, but it was heavily criticized by immigration advocates. Only a small percentage of migrants were able to hire a lawyer, and many were sent to wait hundreds of miles from the border, making it all but impossible to appear for court hearings, according to the American Immigration Council, an advocacy group that promotes immigration.

Trump also pressured three Central American countries — Guatemala, El Salvador and Honduras — into accepting “asylum cooperative agreements” under which the United States would send asylum seekers to those countries to apply for protection.

Within days of taking office, Biden terminatedthe agreements, and Johnson’s office says he should resurrect them. But of more than 900 migrants sent to Guatemala, none received asylum — and fewer than 40 even bothered to try, according to a Senate report.

Separately, Trump in 2018 issued a presidential proclamation to “suspend and limit” entries between the ports of entry (with some exceptions) the same day that the Homeland Security and Justice departments issued a joint interim final rule that barred migrants subject to such a proclamation from applying for asylum. (People could still apply for asylum if they went to ports of entry.) The rule was immediately challenged, and a federal court in California granted a temporary restraining order and then a preliminary injunction. That injunction was upheld at the appeals court level and the Supreme Court, by a 5-4 vote (with Roberts again in the majority), refused to stay the order.

The Supreme Court’s refusal to stay the ruling came a few months after the Trump v. Hawaii case. The court never ruled on the merits after Trump lost reelection, as the Biden administration withdrew Trump’s order.

Andrew R. Arthur, resident fellow in law and policy for the Center for Immigration Studies, which supports stricter immigration limits and a merit-based immigration system, said he believes that despite denying the stay, the Supreme Court likely would have upheld Trump’s rule, especially with the strengthening of the conservative majority after the late Ruth Bader Ginsburg was replaced by Amy Coney Barrett.

“There’s a big difference between the justices denying a stay of a rule while a case wends its way through the courts and ultimately invalidating that rule,” Arthur said. “Under the logic in Hawaii, in my mind, the odds are that there would have been a 5-4 — if not 6-3 — vote in favor of saving the rule.”

He noted that the Biden administration also has tried to encourage migrants with asylum claims to go to the ports instead of crossing illegally and making those claims thereafter, under a rule issued in May that is also being challenged in the courts. “Trump may have gone about it differently, but the policy is basically the same,” he said.

The Senate bill

The Senate bill being negotiated reportedly would give the executive branch a new legal authority that would effectively shut down most asylum screenings for migrants crossing illegally — between ports of entry — when migrant crossings surpass certain thresholds. The bill would also seek to reduce the time for an average asylum claim to be resolved, from years to six months — and make it harder to make an asylum claim. Similar provisions to stem asylum claims are in H.R. 2, a House Republican bill dubbed the “Secure the Border Act.”

Relatively few asylum claims ultimately pass muster.

For fiscal years 2017 to 2023, fewer than 15 out of every 100 people who claimed a fear of persecution or torture if they were returned to their home country were ultimately granted asylum, the Justice Department says — and the number dropped below 12 in 2023. Many were ordered removed in absentia when they failed to appear in court. Under Trump, the Justice Department says, there were 91,271 in absentia orders in fiscal year 2019 and 87,779 in 2020. After a slow start in fiscal year 2021 (which includes part of Trump’s term), when there were 8,536 in absentia orders, such orders reached 159,379 in fiscal year 2023.

The White House says a new law is needed and faulted congressional Republicans for still insisting on executive actions.

“For over 6 years, Speaker Johnson has stressed that securing the border can only be achieved by granting presidents new legal authority,” said Andrew Bates, deputy White House press secretary. “He was explicit about this when he endorsed the Trump Administration’s efforts to pass new laws, and he even went as far as to introduce his own bills. Rep. [Steve] Scalise agreed with Speaker Johnson, saying in 2019: ‘It takes congressional action, you need to change the law.’ As recently as December, Speaker Johnson wrote to President Biden, ‘Statutory reforms designed to restore operational control at our southern border must be enacted.’ Instead of twisting himself into a pretzel to delay a bipartisan, historic border security breakthrough for the American people — including urgently-needed funding for hiring law enforcement officers and stopping fentanyl trafficking — Speaker Johnson should remember what he saidin October: ‘we must come together and address the broken border.’”

The Bottom Line

As Trump learned, to his frustration, a long-standing framework of federal statutes, regulations and court precedents governs how U.S. officials handle asylum claims. Whether Biden acted too hastily to unwind Trump’s patchwork of fixes and whether Trump’s actions were effective — or ineffective and cruel — is a matter of opinion. But the federal courts repeatedly trimmed Trump’s immigration sails by saying he was overstepping the law — which suggests a new law might be necessary.

As Sen. James Lankford (Okla.), the chief Republican negotiator, said on CBS’s “Face the Nation” on Sunday: “Even while [Trump] was president, he was specifically asking Congress to change the standard on asylum to be able to tighten up, to be able to give them additional funds for deportation. All of those things are in this bill.”

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