When President Donald J. Trump was looking for a way to close the southern border in 2018, he found a 73-word provision in asylum law that he said gave him “magic powers” to keep immigrants out of the country.
President Biden used that same provision on Tuesday, taking executive action to temporarily close the border to asylum seekers, suspending long-standing assurances that anyone who sets foot on U.S. soil has the right to seek protection within the country.
“The simple truth is that we have a global migration crisis,” Biden said in a speech at the White House. “If America doesn’t secure our borders, there’s no limit to the number of people who can try to come to the United States.”
Biden’s announcement marks a surprising shift for a president and party that has long touted America as a nation of immigrants. Seeking to boost his reelection chances in 2012, President Barack Obama issued sweeping executive orders on immigration that allowed millions of immigrants to remain in the country legally.
Twelve years later, with the number of people crossing the border illegally at an all-time high, the incoming Democratic president has moved in the exact opposite direction. Critics say Biden is adopting tactics from Trump and his immigration czar, Stephen Miller, to end asylum, even using the same provisions of the Immigration and Nationality Act that Trump cited to justify his travel ban on Muslim countries.
“Stephen Miller and Donald Trump waged a reign of fear on immigration, and the Biden administration has embraced it,” said Heidi Altman, policy director at the National Center for Immigrant Justice. She called it a “dangerous shift that puts America at odds with its core values and commitments.”
Democrats like Biden and his allies have long criticized Trump for his obsession with closing the border. Kamala Harris blasted him in 2017, saying “we cannot turn our backs on millions of refugees.” In 2018, Democrats accused Trump of “adding fuel to the fires of bigotry” by calling for an end to asylum. In 2020, Hakeem Jeffries, now the top House Democrat, called Trump a “xenophobic president.”
But as record numbers of migrants have streamed across the border into distant cities, immigration policy has shifted. Mr. Biden has adjusted accordingly. Sensing Americans wanted tougher policies, the president backed restrictive measures in a bipartisan bill this year. After Mr. Trump called on Republicans to repeal them, Mr. Biden and his advisers felt they had to find another way.
The president announced the policy just hours before leaving Washington for a five-day trip to Paris to mark the anniversary of the Normandy landings, rallying many Democrats. Biden has blamed Republicans for blocking broader efforts at immigration reform, and many of his party’s mayors and governors say it’s finally time to act to address a surge of migrants in their cities.
Biden’s proclamation on Tuesday said refugee rights would be suspended if the number of migrants exceeded a certain threshold, but he later set a lower threshold of 2,500 a day on average, with the suspension taking effect immediately at 12:01 a.m. Wednesday.
Indeed, that threshold has been exceeded almost daily for nearly a year, due to a global migration wave fueled by climate change, economic instability and political violence around the world. While that’s lower than the peak of 10,000 migrants last December, it’s still far higher than the average of about 1,000 per day a decade ago. Officials say the limit doesn’t apply to minors who cross the border alone, or to the small number of people who legitimately fear torture or persecution in their home country.
Biden and his campaign aides are banking on the president’s aggressive new efforts to limit the number of illegal immigrants to be popular with voters. They hope the measures will ease pressure on Democratic-led cities such as New York and Denver, which are struggling to provide food and housing for migrants.
And they believe the move offers Biden a powerful rebuttal to Trump and Republicans, who have long accused Democrats of being weak on the border.
But the move is sure to infuriate some of Biden’s supporters, particularly those on the left who have expressed frustration with the president on a range of other issues, including student debt and climate change.
Biden and his aides have bristled at accusations that they are following in Trump’s footsteps.
The president correctly points out that he has eliminated some of his predecessor’s extreme policies, such as separating children from their parents at the border to send a message to migrants not to come to the U.S. On his first day in office, Biden proposed immigration reforms that would create a path to citizenship for millions of immigrants. Republicans have refused to consider the proposals.
“I have never demonized immigrants,” Biden said at the White House on Tuesday. “I would never say that immigrants are poisoning the blood of our nation. And I would never separate children from their families at the border. And I would never ban people from entering this country because of their religious beliefs.”
But the new measures will be a tough crackdown.
One of the measures included in Tuesday’s proclamation would bar immigrants caught trying to enter the U.S. illegally while his asylum ban was in effect, even through legal channels, from entering the U.S. for five years. Liberals have opposed extending such travel bans for decades.
Biden has reached the same conclusion as Trump and Miller regarding the source of the legal authority to take executive action to stop immigration.
Section 212(f) of the Immigration and Nationality Act states, “Whenever the President determines that the admission of any aliens, or of any class of aliens, into the United States would be detrimental to the interests of the United States, he may by proclamation suspend the admission, as immigrants or nonimmigrants, of all aliens, or of any class of aliens, for such period as he deems necessary, or impose any restrictions on the admission of aliens as he deems proper.”
Legal scholars have debated the meaning of the phrase for years. When the Supreme Court upheld Trump’s travel ban, Chief Justice John G. Roberts Jr. wrote that the clause “oozes deference to the President in every provision.” The American Civil Liberties Union said the Court’s decision in the case was wrong and “reminiscent of its decision upholding the discriminatory detention of Japanese Americans, one of the Supreme Court’s greatest failures.”
Miller said in February that Trump should use the provision “vigorously” during his second term, calling for it to be part of an effort to “build forts on the border and say that no one can get across.”
