WASHINGTON — Looking for a way to shut down the southern border in 2018, President Donald Trump found a 73-word provision in the asylum law that he said gave him “magical authorities” to keep migrants out of the country.
President Joe Biden turned to that same provision Tuesday as he took executive action to temporarily close the border to asylum-seekers, suspending long-standing guarantees that anyone who steps onto U.S. soil has the right to ask for protection in America.
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“The simple truth is, there is a worldwide migrant crisis,” Biden said in remarks at the White House, “and if the United States doesn’t secure our border, there’s no limit to the number of people who may try to come here.”
Biden’s announcement is a stunning reversal for a president and a party that spent years arguing that America was a country of immigrants. When President Barack Obama wanted to shore up his chances of reelection in 2012, he issued a sweeping executive order on immigration — one that allowed millions of immigrants to stay in the country legally.
A dozen years later, with the number of people crossing the border illegally at historic highs, the next Democratic president moved entirely in the other direction. Critics say Biden is adopting the tactics of Trump and Stephen Miller, Trump’s immigration czar, to end asylum, even using the same clause in the Immigration and Nationality Act that Trump cited to try to justify a travel ban on Muslim countries.
“Stephen Miller and Donald Trump peddled fear-based politics on immigration, and the Biden White House has decided to buy,” said Heidi Altman, the policy director at the National Immigrant Justice Center. She called it “a dangerous shift” that will “put the United States at odds with core values and commitments.”
For years, Democrats like Biden and his allies assailed Trump for his obsession with closing the border. Kamala Harris denounced him in 2017, saying that “we can’t turn our backs on the millions of refugees.” In 2018, Democratic lawmakers accused Trump of stoking “the fires of bigotry” by seeking an end to asylum. In 2020, Hakeem Jeffries, now the top Democrat in the House, called Trump the “Xenophobe. In. Chief.”
But the politics of immigration have shifted as record numbers of migrants have crossed into border communities and spread to cities far beyond. Biden has adjusted accordingly. Sensing that Americans want tougher policies, the president backed restrictive measures in bipartisan legislation this year. After Trump called on Republicans to kill that measure, Biden and his advisers felt compelled to find another way.
The president has rallied many Democrats behind the approach, which he announced just hours before leaving Washington for a five-day visit to Paris for D-Day celebrations. Biden blames Republicans for standing in the way of broader efforts to overhaul the immigration system, and many mayors and governors in his party say the time has come to finally do something to address the surge of migration into their cities.
The proclamation that Biden signed Tuesday declared that asylum rights should be suspended whenever migration surged past a certain number. He then set the threshold low enough — at an average of 2,500 migrants each day — that the suspension would be prompted right away, starting at 12:01 a.m. Wednesday.
In fact, that threshold has been exceeded almost every day for nearly a year, thanks to a wave of global migration fueled by climate change, economic instability and political violence around the world. And even though it is lower than the peak of 10,000 migrants in December, it remains far higher than the average of about 1,000 migrants each day a decade ago. The restrictions will not apply to minors who cross the border alone and a small number of people who legitimately fear being tortured or persecuted in their home country, officials said.
Biden and the aides running his campaign are betting that voters will reward the president for newly aggressive efforts to limit the number of people crossing into the country illegally. They hope the move will relieve pressure on Democratic-led cities like New York and Denver, which are struggling to feed and house migrants.
And they believe the actions will give Biden a potent retort to Trump and Republicans, who have long accused Democrats of being weak on the border.
But the move is certain to inflame some of Biden’s supporters, too, especially those on the left who have already expressed frustration with the president on a range of other issues, like student loans and climate change.
Biden and his aides bristle at the accusation that they are following in Trump’s footsteps.
The president correctly notes that he has ruled out some of his predecessor’s extreme policies, such as separating children from their parents at the border to send a message to migrants that they should not come to the United States. On his first day in office, Biden proposed an immigration overhaul that would have provided a pathway to citizenship for millions of immigrants. Republicans refused to consider the proposal.
“I will never demonize immigrants,” Biden said at the White House on Tuesday. “I’ll never refer to immigrants as poisoning the blood of a country. And further, I’ll never separate children from their families at the border. I will not ban people from this country because of their religious beliefs.”
But the new measures are a sharp crackdown.
One measure included in the president’s proclamation Tuesday prohibits migrants from entering the United States for five years — even through a legal pathway — if they have been caught trying to enter illegally while the president’s asylum ban is in place. Liberals have been fighting against such extended bans for decades.
Biden has also reached the same conclusion as Trump and Miller when it comes to the source of their legal authority to take executive action to prevent migration.
Section 212(f) of the Immigration and Nationality Act reads, “Whenever the president finds that the entry 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, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Legal scholars have debated for years the meaning of those words. When the Supreme Court upheld Trump’s travel ban, Chief Justice John Roberts wrote that the provision “exudes deference to the president in every clause.” The American Civil Liberties Union said the court’s ruling in that case was wrong and “stands among its greatest failures, reminiscent of its decisions allowing the discriminatory incarceration of Japanese Americans.”
In February, Miller said Trump should use the provision in a “muscular” way during a second term and called for it to be part of an effort to “establish a fortress position on the border and say no one can cross here at all.”
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