After the Lankford-Murphy-Sinema bill imploded on the Senate floor in February, Washington insiders have been whispering about the possibility that President Biden might issue an executive order on immigration. Last week, the New York Post added further detail to the rumors. Citing a source “close to the White House,” the newspaper reports that President Biden is planning executive action “that would allow him to shut down the US-Mexico border once the number of migrant crossings reaches 4,000 per day.” According to the Post, a federal government source confirmed that an executive order to limit entries was coming, though it is unclear when it would be announced.
The issuance of an executive order to curb the number of illegal entries (albeit it modestly) would mark a calculated change in policy for the President. On day one, President Biden threw open the borders to the world’s population. Instead of detaining aliens and using expedited removal (which bypasses immigration court), his Administration intentionally released the vast majority of illegal aliens and gave most of them work permits. He then shielded illegal aliens from deportation using various means such as parole, Temporary Protected Status, and Deferred Enforced Departure.
Not surprisingly, migrants started to pour over our southern border (some even arrived at the northern border). Each year of the President’s term, illegal border crossings have reached record levels. And even though they have eased off the record monthly high of 371,000 in December 2023, border agents are still recording over 8,000 illegal border crossings per day.
Despite these sustained, historic numbers of illegal border crossers, the cartel activity, the drugs, and human suffering, President Biden still refused to call the situation a crisis. Instead, he blamed the chaos on the “broken system” he inherited, and mysterious global forces that seemingly can’t be controlled. While President Biden promised us he had done everything in his power to secure the border, he sued states like Texas, which have been trying desperately to stem the flow of illegal migrants and stop cartel activity.
Finally, after three years of chaos he intentionally created, President Biden finally admitted there was, in fact, a border crisis and urged Congress to act. But even then, he only wanted action on the deeply-flawed Senate legislation that Secretary Mayorkas negotiated with a handful of Senators. He refused to acknowledge that H.R. 2, the Secure the Border Act which passed in May 2023, would actually help fix the border crisis, unlike the Senate legislation.
Now, with six months before the election and his approval ratings on immigration in the tank, the President miraculously seems poised to issue an executive order to close the border. But his planned executive order will only close the border when illegal crossings hit a threshold of 4,000 illegal aliens per day. Based on current numbers, that still allows half of illegal migrants to cross into the U.S. Over the course of a year, it would potentially still allow 1.46 million illegal aliens to enter the U.S., most of whom would be released and given work permits.
Moreover, any executive order would likely be modeled off of the failed Senate legislation, which was riddled with exceptions and loopholes. For example, under the Senate legislation the authority to close the border:
- Did not apply to asylum-seekers and parolees at ports of entry;
- Did not apply to any group of persons the government felt should be exempted “based on the totality of the circumstances”;
- Could only be used for a limited number of days each year; and
- Expired in three years, leaving the American people in the same situation we are now.
Because we understood the weaknesses in the Senate legislation, FAIR told President Biden he did not need to wait for the Senate to act. In January, we urged the President to take executive action immediately to end the border crisis. We reminded him that he could invoke his authority under Section 212(f) of the Immigration and Nationality Act to “to suspend the entry of all aliens or any class of aliens.” This authority, we explained, allows the president to suspend the entry of aliens when he finds that their “would be detrimental to the interests of the United States.” This authority has been used many times in the past, including by President Biden himself during Covid.
