BORDER SECURITYBiden’s Unlawful Border Executive Order Is Bad Policy
President Biden should not be ignoring US laws. He should not be seeking to stop people from coming to the United States. Instead, he should be working to let them enter this country legally and orderly so they can contribute to it. America is a great country, and people want to join it. That’s a good thing. We should let them do so legally.
President Joe Biden announced that he will impose a near‐complete ban on asylum for anyone who crosses the border illegally. He will also raise the standard for protection under related statutes that prohibit removals to persecution or torture. The law clearly states that the right to apply for asylum is “irrespective of status”and “whether or not at a designated port of arrival”(8 USC 1158(a)(1)). Biden doesn’t care about the law because he thinks this move will benefit him politically. It will not. This is both bad policy and bad politics.
We should start with the statement that this is not a “new position” for Biden. Since day one, he has enforced the most severe restrictions on asylum in American history—first under Title 42 of the health code and then under Department of Homeland Security regulations in May 2023. He has already enacted more than 120 policies designed to restrict entry at the southwest border, and he is currently detaining and expelling vast numbers of people—far more than his predecessor.
This action is consistent with his goals since his inauguration. The fact that Biden failed to get Congress to pass his immigration bill does not justify ignoring the laws that Congress has passed.
Setting an Unmeetable Standard
Biden’s order will take effect when Border Patrol arrests exceed 2,500 per day (which they do now) and will expire only when arrests fall below 1,500 per day for two consecutive weeks. From fiscal years 2019 to 2024, DHS has met this 1,500-per-day target in 11 months—all but once in fiscal year 2020. The Biden administration has never met this standard.
Even the Trump administration, despite the pandemic, a locked‐down economy, and the most determined executive branch, failed to meet this standard in August, September, October, November, or December 2020. Achieving this goal would require a 60‐percent decline in arrests.
This executive order might be the first time a politician has intentionally set an unmeetable goal. Imagine if President Obama had established a similar goal. It is extraordinarily unlikely that any set of enforcement‐only policies will reduce Border Patrol arrests to below 1,500 per day for two weeks—particularly when the clock is running out on this administration.
Biden fears more immigrants trying to get in before the election, and that’s why he’s doing what he’s doing. However, setting and failing to achieve such a goal will not make him look more competent on border policy.
