Fears are rising about what a second Trump term could mean for immigrant rights, but the nation may not need to wait on Trump to see a revival of his policies. A major border crackdown with echoes of Trump’s past actions is already looming under President Joe Biden—and it has progressives up in arms.
“Doing Trump impersonations isn’t how we beat Trump,” Rep. Alexandria Ocasio-Cortez said Wednesday in response to reports that Biden is considering executive action to seal the border and massively overhaul the asylum process.
Multiple news outlets revealed Thursday that White House staff are debating whether Biden should invoke Sec. 212(f) of the 1952 Immigration and Nationality Act, which gives the president authority to “suspend the entry” of foreign nationals into the United States if he determines that their arrival is not “in the best interests of the United States.”
It is the same law cited by Trump to justify his 2017 Muslim ban and his 2018 blockade on people seeking asylum. In both cases, Trump earned condemnation from Democrats and court challenges from civil rights groups and immigrant rights advocates.
The order being pondered by Biden marks a sharp reversal from his earlier stances and demonstrates just how far to the right his administration has moved on the issue. Upon taking office in 2021, he immediately ended Trump’s Muslim ban, for instance, and vowed to “restore” America’s immigration system.
According to those familiar with internal White House discussions, Biden’s order would end the guarantee that anyone who reaches U.S. soil has the right to ask for safe haven, protection, and asylum.
An executive order terminating this component of long-established asylum policy would allow Biden to implement one part of the bipartisan immigration bill that Republicans wouldn’t allow Democrats to pass in Congress earlier this month. Encouraged by Trump, the GOP rejected the bill for not being anti-immigrant enough.
If it had become law, the bill would have automatically sealed the border if an average of more than 5,000 migrants per day tried to cross unlawfully in the course of one week, or if more than 8,500 tried to cross on any single day.
In fiscal year 2023, there were more than three million attempted crossings by undocumented migrants at the southern border; approximately 2.5 million are estimated to have gotten through. Many of these vulnerable migrants have become part of the super-exploited workforce in industries like farming, construction, meatpacking, and others.
Apart from those who enter undetected (approximately 600,000 last year) or who overstay legitimate visas, many migrants now try to attain status by applying for asylum. The average wait time for a hearing from the overburdened court system is around four years. Of those who appear for their hearings, around 60% have their asylum application denied.
After failing to pass the immigration bill this month—which was conditioned on approval of military funding for Ukraine and Israel and included billions for the Border Patrol—Biden is attempting to achieve some of its aims via executive action.
The move is as much political as it is practical, however.
With the chronically underfunded and understaffed asylum system buckling under the weight of applications and liberals seeing the border as a vulnerability for Biden in his rematch against Trump, the president is being pressured by some Democrats to adopt Trump’s arguments but to sell them from the left.
One left-liberal policy analyst, John B. Judis, not only advised Biden to use Sec. 212(f); he even encouraged the president earlier this month to “continue building the border wall that the Trump administration began.”
Like Trump, however, Biden too will face major hurdles as he tries to implement his border crackdown. Though an altered version of the Muslim ban survived the Supreme Court, for instance, earlier iterations of Trump’s policy that cited Sec. 212(f) were all thrown out by lower courts.
Biden has thus chosen a tenuous legal justification for his move. But given the time it can take for policies to be implemented, challenged in the courts, and eventually ruled upon, the White House may be calculating that Biden can enjoy some political benefits in the 2024 election before having to worry about any court decision.
The American Civil Liberties Union, which took the last president to court over his anti-immigrant actions, said it won’t wait around for long, however. One of its lawyers, Lee Gelernt, told the New York Times Thursday that it will sue Biden, as well.
“The courts were emphatic that the Trump administration could not deny asylum based simply on how one entered the country,” he said. “Hopefully, the Biden administration is not considering recycling this patently unlawful and unworkable policy.”
Many progressive lawmakers in Congress are trashing not only the executive action currently being considered by the administration but also its broader record on immigration.
Ocasio-Cortez, in a critique posted to social media, declared: “Seeking asylum is a legal right of all people. In the face of authoritarian threat, we should not buckle on our principles—we should commit to them. The mere suggestion is outrageous, and the president should refuse to sign it.”
Rep. Pramila Jayapal, D-Wash., said the plan would unfortunately be just the latest in a long line of anti-immigrant Biden policies.
“This would be an extremely disappointing mistake. Cruel enforcement-only policies have been tried for 30 years and simply do not work,” Jayapal wrote on X. “Democrats cannot continue to take pages out of Donald Trump and Stephen Miller’s playbook—we need to lead with dignity and humanity.”
Outside of progressive circles, there is little discussion about other approaches to the immigration issue, like penalizing exploiting employers who take advantage of migrants or of establishing a path to legal employment and residence for undocumented workers and their families. And as for increased funding for asylum officers, immigration judges, and border processing agents—Republicans will not allow those to pass.
Policy discussions on the issue among leaders in both parties continue to focus solely on policing those seeking to cross. For immigrant rights advocates, therefore, the fight in 2024 will be about resisting a Trump comeback while also trying to force the Biden administration to abandon its copycat approach.
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