Will Biden’s new immigration order help fix the border?

What’s happening

President Biden signed an executive order last week that will allow immigration officials to effectively block migrants from seeking asylum in the U.S. when the number of crossings passes a certain threshold.

The order, widely viewed as the most aggressive immigration crackdown by a Democratic president in modern memory, has often been characterized in the media as Biden giving himself the power to “shut down” the border, but the reality of what it does is more complicated than that.

For one, all forms of legal immigration aren’t affected in any way. The order only applies to a specific form of immigration known as asylum.

Under both U.S. and international law, any migrant attempting to enter the U.S. has a legal right to seek protection here by claiming they face persecution in their home country. That doesn't mean they automatically get to stay — in fact, most asylum claims are ultimately rejected — but it does mean that they have the right to make their case.

Such a high number of people have been coming to the U.S. to seek asylum in recent years that the system that processes the claims has become overwhelmed. As a result, immigration officials have been forced to release asylum seekers into the U.S. while they await a court hearing — a wait that frequently takes several years. A bipartisan bill that would have provided funding to increase the number of asylum officers and judges to speed up this process stalled in Congress earlier this year, a development that Biden said left him with no choice but to take action on his own.

Under Biden’s new order, migrants who enter the U.S. will not be given the opportunity to apply for asylum when the number of border crossings passes 2,500 per day. That number, which hit more than 8,000 late last year, is well below the current typical daily figure. That means the restrictions could stay in place indefinitely unless there’s an unexpected and dramatic decrease in unauthorized entries into the country.

The order is not a blanket ban on asylum applications. It doesn’t apply to unaccompanied minors and it allows immigration officers to make exceptions for people who face extraordinary risk if deported or if “operational constraints” make it impossible to safely keep them in custody. Asylum seekers will also still be allowed to apply for protection at legal points of entry, though that system is severely backlogged as well.

Why there’s debate

Biden has received an enormous amount of criticism from both the left and the right over this order, but for very different reasons. Immigrant rights advocates and some progressive Democrats argue that the new rules will cause tremendous suffering while doing nothing to actually solve the chaotic situation at the border. They say the president, who campaigned on a promise to end the cruelty of the Trump era, has abandoned his principles in a misguided attempt to burnish his weak poll numbers on immigration. There are also serious questions about whether the order is even constitutional.

Though Republicans generally back aggressive immigration crackdowns, most conservatives argue that Biden’s new order is too little, too late to make any real difference at the border. Many argue that it represents a desperate attempt by the president to appear tough on immigration after years of what they view as overly permissive policies that have contributed to the sharp rise in asylum applications.

Biden does have some defenders, mostly among political centrists. They argue that the president is doing the best with the limited options he has been left with because Congress — particularly Republicans — has refused to pass any law that might solve the crisis at the risk of handing Biden credit for doing so.

What’s next

A lingering question about Biden’s new asylum rules is whether they will hold up in court. The American Civil Liberties Union has said it plans to sue to have the order thrown out using the same legal reasoning that led a similar policy established by former President Donald Trump to be struck down by a federal judge.

Perspectives

Biden is sacrificing his principles in a vain attempt to get a few more votes

“How unfortunate that the same president who championed the rights of asylum-seekers seems to be willing to toss aside their legal and human rights so easily.” — Paul Reyes, CNN

The president shouldn’t get any credit for finally trying to fix a problem he helped create

“Biden created this crisis with very deliberate choices, and he implicitly acknowledges as much through the executive order, which shows that he always had the unilateral power to crack down on the border, not just pry it open.” — Rich Lowry, National Review

Biden can’t fix the border on his own, but he’s doing the best he can

“Resolving the border crisis will require a functioning Congress. … But since we don’t have that, the executive branch is taking what small steps it can. In the process, Biden is robbing Republicans of a campaign issue that used to be a solid GOP win.” — Editorial, Dallas Morning News

The order could have made a real difference if it was enacted years ago

“Biden’s now taking the right action. He just shouldn’t have waited nearly four years to do it.” — Ingrid Jacques, USA Today

The order may seem harsh, but we can’t have a functioning border if the system is overwhelmed

“Welcoming newcomers with dignity is important, but our capacity to do so is not infinite. For that reason, I don’t fault the Biden administration for trying to turn down the spigot.” — Farah Stockman, New York Times

The order won’t make the border any more manageable, but it will cause a lot of suffering

“It can’t be counted on to reduce, or to stop, people from coming. But it certainly will create confusion. It will create disorder, and it will put people’s lives in danger.” — Monika Y. Langarica, a senior attorney with the Center for Immigration Law and Policy, to the Guardian

Politically, Biden has no choice but to at least look like he’s trying to do something

“Right now, the Biden administration is using the levers of government to up the odds of winning in November. You can’t blame them. Our political system begs them to. In politics, there are real, substantive accomplishments, and there is the public’s perception of accomplishment. They aren’t the same thing. As long as the gap remains, we can expect presidents to keep putting on a show.” — Kenneth Lowande, The Hill

No one is buying Biden’s new 'tough on immigration' act

“This looks like just one more in his long string of phony fixes, another effort to do nothing while insisting he’s gotten tough.” — Editorial, New York Post

Photo illustration: Yahoo News; photos: Getty Images