Trump-Era Authority Ironically Eyed by Biden Administration to Confront Southern Border Challenges

President Biden is contemplating the use of a potent presidential authority, famous during the Trump era, to confront the surge of migrants arriving at the U.S. southern border, according to three sources familiar with the discussions, as reported by CBS News. 

The administration is assessing the possibility of invoking a 1952 law, known as 212(f), to significantly curtail access to the U.S. asylum system, which is straining under the weight of unprecedented levels of migrant arrivals along the border with Mexico, the sources revealed on condition of anonymity due to the sensitivity of the deliberations.

The law grants the president the authority to “suspend the entry” of foreigners if their arrival is deemed contrary to the national interest. The Trump administration utilized this law on multiple occasions, including to impose immigration and travel bans from certain countries, predominantly Muslim-majority nations, and to restrict asylum for migrants entering the country unlawfully.

Should President Biden proceed, the executive action could be announced within the next fortnight, the sources indicated. An administration official clarified that no final decisions had been reached regarding executive action to address the border situation, where migrant numbers have surged to unprecedented levels.

However, implementing significant restrictions on asylum would pose substantial legal and operational challenges. Nevertheless, issuing an executive order aimed at curtailing illegal border crossings could be interpreted as a political stunt or appeal from President Biden, especially in the lead-up to the 2024 election. Border policy remains one of the President’s most poorly rated issues, with several polls indicating serious disapproval of his immigration management.

The potential executive order would solidify a shift in immigration policy by President Biden, who initially pledged to “restore” the U.S. asylum system upon taking office in 2021 by eliminating all of Trump’s efforts to secure the border. Faced with record migrant apprehensions along the southern border and mounting concerns in Democratic-led cities receiving migrants, the administration is coming around to the idea of asylum restrictions.

In a recent development, the White House brokered an agreement with a group of senators to grant the president authority to suspend asylum laws and swiftly expel migrants during spikes in illegal immigration. However, Republican lawmakers rejected the deal, demanding stricter asylum changes in exchange for increased border funding and aid to Ukraine.

White House spokesperson Angelo Fernández Hernández criticized Republican lawmakers for prioritizing partisan interests over national security. He urged Speaker Johnson and House Republicans to pass the bipartisan deal to secure the border.

Should President Biden opt to invoke the authority, his administration would confront substantial operational hurdles in its implementation. Despite enacting regulations presuming migrants ineligible for asylum if they enter the U.S. unlawfully, the administration faces challenges in screening all migrants due to resource shortages. Additionally, most border-crossers are released pending lengthy court proceedings due to a backlog of applications.

The move would almost certainly prompt legal challenges if implemented. While the Supreme Court upheld the last version of the Trump administration’s “travel ban,” lower courts blocked attempts to render migrants ineligible for asylum at the southern border under the 212(f) authority.