From policy disputes to legal wrangling: The changing argument over border security

In recent weeks, the debate over U.S. policy at the southern border has shifted remarkably. President Biden now acknowledges that the situation there is not only a “challenge” (the previous official noun), but also a “crisis.” And to the astonishment of many, he wants to “shut down the border right now,” as his Republican critics have long insisted.

This unexpected agreement has shifted the debate without ending it. The president says that he needs new legislative authority to close the border, while Republicans insist that existing law gives him all the authority he needs. Who is right? It turns out that this question is surprisingly hard to answer.

To support their position, Republicans often cite section 212(f) of the Immigration and Naturalization Act of 1952, which states that…

“Whenever the President finds that the entry of any applicants or of any class of applicants into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all applicants or any class of applicants as immigrants or nonimmigrants, or impose on the entry of applicants any restrictions he may deem to be appropriate.”

It was on this basis that the Supreme Court upheld the right of President Trump to prevent the citizens of several Muslim-majority nations from entering the country.¹ The Trump administration was careful to provide a non-religious justification for taking this step. In a much-cited phrase from the majority opinion, Chief Justice Roberts stated that section 212(f) “exudes deference to the President” and gives him “ample power” to put his policy into effect.

On the face of it, this would seem to settle the question. But not so fast. In 1980, Congress enacted the Refugee Act, which codified the right of non-U.S. nationals “aliens” who are physically present in the United States or who arrive in the United States to apply for asylum, “regardless of that person’s immigration status or whether the person lawfully entered the country.”² In plain English: Although the president may try to exclude you from entering the United States, if you can touch American soil, you can claim asylum. And once you do, you enjoy numerous guarantees that prevent the government from expelling you without “due process of law,” even if you entered the country illegally.³

Existing law states that the Secretary of Homeland Security or the attorney general may grant asylum to a non-U.S. national “who is found to be a ‘refugee’,” defined as “a person who is unable or unwilling to return to a country of origin . . . because of past persecution or a well-founded fear of future persecution on account of the non-U.S. national’s race, religion, nationality, membership in a particular social group, or political opinion.” Fewer than 15 percent of entrants into the United States over the past decade have met this test. Most were fleeing poverty, crime, or civil disorder—excellent reasons for leaving one’s country, but not adequate reasons to be granted asylum under U.S. law.

In practice, the difficulty is that each individual claim for asylum must be weighed on its merits, even if recent experience suggests that it is unlikely to be granted. Because the flow of claims over the past decade has exceeded authorities’ ability to adjudicate them, the backlog of cases has swelled ten-fold during this period to well over 1 million. As a result, it can take years to make a final determination, during which time large numbers of applicants just fade into the population, finding work without work permits or authorization to remain in the country.

In theory, U.S. authorities could detain asylum applicants while their claims are adjudicated. In practice, sheer numbers make this approach impractical for both fiscal and administrative reasons. Is the U.S. government prepared to set up schools for tens of thousands of children, let alone provide the range of basic social services massive detention camps would require?

This is the logic that led the Trump administration to institute its “Remain in Mexico” policy, which required asylum applicants and their families to stay south of the border while their claims were assessed. Republicans insist, while most Democrats deny, that this program can be conducted under existing legal authority, and they want the Biden administration to resume it. Despite a wave of litigation that began soon after it went into effect, this issue remains unresolved. In 2022, the Supreme Court ruled that the Biden administration had the right to end the program⁴, which does not settle the question of whether the Trump administration had the authority to start it.

Thus, while the issue may not be settled as a matter of law, it recently got closer to being settled as a matter of politics.

Tom Suozzi’s recent substantial victory in New York’s 3^rd congressional district may have a considerable impact on the issue, regardless of where the law ends up. Suozzi went where no Democrat had gone before, beating back attacks on Democrats’ immigration record and declaring flatly that the border should be closed. Some Democrats are urging President Biden to shut down the border without delay, even without new legislation, and take his chances with the courts. Better to be seen taking a strong position than pleading powerlessness, they argue.

Whether President Biden will be willing to go down this road remains to be seen. On the face of it, reversing his previous position on the legality of closing the border would be embarrassing. But on another high-profile issue—student loan cancellation—the president eventually opted to try getting it done after insisting for months that he didn’t have the legal authority to do so. Predictably, the courts struck it down, forcing the president to do piecemeal what he sought to do in a single bold stroke.

History could repeat itself with immigration. Still, the argument for going big is politically compelling. Voters across the board dislike the status quo at the border and give President Biden a low grade for his handling of the issue. His State of the Union address of March 7 offers an opportunity (which he may spurn) to announce a bold change of course to what may be the largest audience he will enjoy this year.