Biden contemplates executive action for border enforcement before 2024 election

President Biden has planned to deliberate on the possibility of invoking a far-reaching presidential authority reminiscent of actions taken during the Trump administration to enact stricter measures against migrants arriving at the U.S. southern border, according to three individuals familiar with the discussions, as reported by CBS News.

Sources revealed that President Biden is considering invoking a law dating back to 1952 to impose substantial restrictions on access to the U.S. asylum system, which has been strained by the unprecedented influx of migrant arrivals along the border with Mexico. These sources, speaking on condition of anonymity to discuss internal government deliberations, shared insights into the administration’s plans.

The law in question, identified as 212(f), empowers the president to “suspend the entry” of foreigners if their arrival is deemed contrary to the nation’s best interests. Notably, the Trump administration employed this law on multiple occasions, such as implementing immigration and travel bans targeting certain predominantly Muslim countries and denying asylum to migrants who entered the country unlawfully.

If the proposal receives approval, President Biden could announce the executive action within the next fortnight, as indicated by the sources. However, an administration official emphasized that no final decisions have been reached regarding the potential utilization of executive authority to address the escalating situation at the U.S.-Mexico border, where migrant arrivals have reached historic highs.

Implementing any substantial asylum restrictions would encounter considerable legal and operational challenges. Nevertheless, issuing an executive order aimed at curbing illegal border crossings could convey a significant political message from President Biden ahead of the 2024 election, given that border policy ranks among his least popular issues, with numerous polls indicating majority disapproval of his immigration management.

Furthermore, such an executive order would solidify a notable shift in immigration policy by President Biden, who initially pledged to “restore” the U.S. asylum system upon assuming office in 2021. In response to surging migrant apprehensions along the southern border and mounting discontent in Democratic-led municipalities receiving migrants, the Biden administration has embraced certain asylum restrictions.

Despite efforts to broker agreements with lawmakers, including a recent negotiation with a group of senators to grant the president authority to suspend asylum laws during spikes in illegal immigration, Republican legislators rejected the proposal, deeming it insufficiently stringent. The White House has criticized these actions, accusing Republican lawmakers of prioritizing partisan interests over national security concerns.

Should President Biden proceed with invoking executive authority, his administration would encounter significant operational hurdles in implementing such measures at scale. While the administration previously enacted regulations presuming migrants ineligible for asylum if they entered the U.S. unlawfully without seeking protection in a third country, resource limitations have hindered comprehensive screening of illegal border-crossers.

Moreover, any attempt to restrict asylum eligibility using the 212(f) authority is likely to prompt legal challenges. While the Supreme Court upheld the final iteration of the Trump administration’s “travel ban,” lower courts blocked efforts to disqualify most migrants from asylum at the southern border using the same authority.

Given the precedent set by previous legal battles, experts anticipate renewed litigation if President Biden pursues a similar course of action. Lee Gelernt, a lawyer with the American Civil Liberties Union who successfully challenged the Trump administration’s asylum ban in federal court, emphasized that any executive order denying asylum based on entry location would likely face legal scrutiny and ultimately result in litigation.