Biden border blockade: Illegal when Trump did it, and it’s still illegal now
Then-Democratic presidential hopeful Joe Biden talks with a protester objecting to his stance on deportations during a town hall in Greenwood, S.C., on Nov. 21, 2019. President Joe Biden's administration has just announced an immediate blockade on people seeking asylum at the U.S.-Mexico border, copying earlier Trump policy. | Meg Kinnard / AP

“It was illegal when Trump did it, and it’s no less illegal now.”

That was the reaction of Lee Gelernt, deputy director of the ACLU’s Immigrant Rights Project, to the White House’s announcement Tuesday that President Joe Biden issued a stringent new executive order on the border crisis.

When news leaked in February that Biden was considering a border crackdown, many warned he was treading dangerously close to crafting an outright copy of Trump’s earlier entry blockades. At the time, Rep. Alexandria Ocasio-Cortez said, “Doing Trump impersonations isn’t how we beat Trump.”

On Tuesday, Biden did exactly that when he immediately stripped migrants of the right to apply for asylum at the U.S-Mexico border whenever officials determine the border to be “overwhelmed.”

The administration invoked Sec. 212(f) of the 1952 Immigration and Nationality Act, which gives the president the 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 ban on people seeking asylum. In both cases, Trump earned condemnation and court challenges.

Blaming the GOP for his anti-immigrant moves, Biden said, “Republicans have left me no choice” and said he had to act via executive action to “gain control of the border.”

He was referring to the bipartisan immigration bill that Congressional Republicans refused to pass in February. Encouraged by Trump, GOP lawmakers rejected the bill for not being anti-immigrant enough. They were also determined not to allow Biden any chance to steal one of their key campaign issues.

While the GOP is calculating its moves solely in line with election needs, Biden’s move is as much political as it is practical.

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 has been under pressure by Democratic strategists to adopt Trump’s arguments but to sell them from the left.

One liberal policy analyst, John B. Judis, not only advised Biden to use Sec. 212(f); he even encouraged the president in early February to “continue building the border wall that the Trump administration began.”

Biden did not go that far, but anticipating attacks from the right, he issued an order that’s stricter than the bipartisan legislation proposed Republicans sunk months ago.

It goes into effect anytime the number of “border encounters”—i.e. attempted entries—hits 2,500 per day. That means immediately, because daily arrest averages for unlawful crossings have not dipped below that number for more than three years. It would remain in effect until the number is below 1,500 for two consecutive weeks. That number has not been seen since the height of the COVID-19 pandemic in July 2020.

Biden’s outright adoption of Trump’s previous schemes is not, of course, shielding him from attacks from the right. On social media Tuesday night, the Republican nominee dismissed Biden’s order as “all for show.”

Apart from GOP posturing, the real pushback against the White House announcement is coming from progressives, civil liberties groups, and immigrant rights activists.

Rossana Cambron, co-chair of the Communist Party USA, told People’s World that the pundits and Democratic strategists are giving the president bad advice. “This is not a good strategic move for Biden,” Cambron said. “He continues to push more votes away.”

The CPUSA leader said the White House is “perpetuating the narrative that immigrants are at fault for the poverty and insecurity people feel in this country, when in reality it is the system that puts profits before people that’s at the root of the problem.”

The Texas Civil Rights Project’s senior attorney, Karla Marisol Vargas, called Biden’s order “a shameful attempt to incite fear and score political points at the expense of families, children, and adults seeking safety at the border.”

Rep. Pramila Jayapal, D-Wash., said Biden was taking completely the wrong approach to the challenge at the border. “Enforcement-only actions on immigration, like shutting down the border, are the same types of tactics that Trump used,” she said. “They don’t work.”

Global Refuge, an organization that assists newcomers, also slammed the administration. “No one wants to see migrants…game the asylum system, but we see…people who are fleeing the most dire of circumstances at a time of unprecedented global migration,” the group’s head, Krish O’Mara, told the press.

The United Nations’ refugee agency said that while it recognizes the logistical and legal challenges of “increasing irregular crossings of migrants at the U.S.-Mexico border,” the U.S. must “uphold its international obligations” and “strengthen safe and regular migration pathways.”

That is exactly what’s been missing from the immigration and border debate in U.S. politics. Outside of progressive circles, there is little discussion about other approaches to the immigration issue, like boosting the budget of the agencies dealing with asylum cases, establishing a path to legal employment and residence for undocumented workers and their families already here, or of penalizing exploiting employers who take advantage of migrants.

And with the bipartisan consensus around the central aspects of U.S. imperialist foreign policy, there is essentially zero examination of U.S. actions internationally or of global capitalism’s economic dynamics around the world that fuel mass migration.

Among them: harsh sanctions regimes on countries like Venezuela, support for corrupt right-wing governments across Latin America, repression of land reform and human rights activists, harsh labor repression, natural resource exploitation practices, and more.

The CPUSA’s Cambron made that point, arguing, “If this country would cease draining the resources of the countries that immigrants come from, they would have less need to leave their homelands.”

Policy discussions on the migration issue among leaders in both of the major parties continue to focus solely on policing the people trying to cross the border, however, instead of addressing the reasons so many try.

For immigrant rights advocates the fight now is to resist a Trump comeback while also trying to force the Biden administration to abandon its copycat approach. As with the genocide in Gaza, it appears the president’s re-election campaign is determined to continue alienating progressive voters even as polls show Trump gaining.

This article includes information from earlier People’s World reporting.

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C.J. Atkins
C.J. Atkins

C.J. Atkins is the managing editor at People's World. He holds a Ph.D. in political science from York University in Toronto and has a research and teaching background in political economy and the politics and ideas of the American left.