President Joe Biden is expected to use his executive order powers to curb illegal border crossings on the southern border in the coming weeks.
A more muscular step by the president has been considered for months, but multiple roadblocks have prevented Biden from issuing one. Republicans have made the border a top subject in 2024, and Biden has been trying to find the right way to address it.
While illegal border crossings dropped in January and have remained relatively low compared to the rest of his tenure, Biden is looking for solutions within his powers. However, relying on the same executive power that then-President Donald Trump pointed to as a way to issue his “Muslim ban” has several problems, both politically and legally.
Court conundrum
If Biden issues an executive order, he will be relying on federal code Section 212(f), which gives the president the authority to limit foreigners from entering the country if their crossings are deemed “detrimental” to U.S. interests. Trump unsuccessfully used that section to try and ban asylum-seekers from several Muslim-majority countries from entering the United States.
“We’re examining whether or not I have that power,” Biden said in a recent interview with Univision.
“Some are suggesting that I should just go ahead and try it,” Biden continued. “And if I get shut down by the court, I get shut down by the court.”
Homeland Security Secretary Alejandro Mayorkas, whose impeachment trial in the Senate for his alleged dereliction of duty related to the southern border could take place this week, said the administration frequently discusses solutions to the border but is unclear what would stand in courts.
Entering the U.S. from anywhere other than legal entry points is already illegal. Biden has used his executive order powers to reject asylum-seekers automatically who cross illegally.
Congress’s cash
Any action Biden takes to direct more enforcement at the southern border will need cooperation from Congress and its control of the country’s coffers.
After months of negotiations, Congress blocked a piece of bipartisan border legislation following opposition from Trump.
However powerful an executive order is, it is missing money behind it, something only Congress can grant to find tangible solutions, such as hiring more Customs and Border Protection officers. The bipartisan border bill would have added 1,500 more agents.
“The administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system,” White House spokesman Angelo Fernandez Hernandez said.
“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” he said.
“We cannot give ourselves resources,” Mayorkas said.
Biden’s base
Biden also faces the threat of his Democratic base moving away from him ahead of the election. The 2024 general election is expected to be narrow and will be tricky for Biden if he cannot count on the most left-leaning members of his base for a vote.
In February, a group of progressives composed of more than 150 international, national, state, local, and faith-based entities warned Biden of taking on the approach from the Trump administration on border policies.
“We urge you to heed our warning: This tired approach failed under the past administration, will fail and cause great harm again, and will tarnish your administration irreparably,” the groups said in the letter organized by the National Immigrant Justice Center and Human Rights First.
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“On your first day in office, you rightly rescinded a number of abhorrent signature policies of your predecessor. These include the Muslim and African bans and a proclamation that sought to bar asylum access based on manner of entry,” the letter said. “Yet, your office is reportedly considering using the same law underpinning these policies you rescinded to attempt to shut down access to asylum at the southern border.”
Biden faces another threat from some of his progressive base as thousands have protested him in several primary elections over his administration’s handling of the Israel-Hamas war.
