The Senate killed the bipartisan proposal to curb illegal immigration, but as President Biden’s Republican critics have suggested, he can, on his own authority, take measures that will limit the number of undocumented workers crossing the border.
If given sufficient fanfare, these measures could help Mr. Biden and the Democrats in November. They are also well worth doing for their own sake.
Still, those measures alone aren’t sufficient to put in place a long-term structure to bring order to the border and our immigration system. To do that, Congress also will eventually have to act.
Mr. Biden has authority to act under Section 212(f) of the 1952 Immigration and Nationality Act, which says that the president can “suspend the entry of all aliens or any class of aliens” whose entry he finds “would be detrimental to the interests of the United States.” In 2018, when the Supreme Court ruled in Trump v. Hawaii against challenges to the administration’s Muslim travel ban, it declared that this provision in the 1952 law “exudes deference to the President.”
Out of the more than three million attempted crossings by undocumented migrants at the southern border in fiscal year 2023, the roughly 2.5 million who got through have created a tremendous fiscal burden on our border as well as in cities and states not only in the Southwest but also in the Midwest and Northeast. Many of these migrants have joined an underclass of workers whom employers have over the decades exploited mercilessly to bring down wages in farming, meatpacking, construction and other vulnerable occupations. At the same time, the ease with which these undocumented migrants have gained passage has cast doubt on America as a nation of enforceable laws.
Using Section 212(f), Mr. Biden can narrow two of the main avenues through which the undocumented enter the country. While some migrants cross the border undetected — some 600,000 in fiscal year 2023 — or overstay visas, a much larger number now claim the right to asylum. In the Refugee Act of 1980, Congress put into law the United Nations convention for granting asylum to migrants who have a “well-founded fear of persecution on account of [their] race, religion, nationality, membership in a particular social group, or political opinion.”
Many migrants, seeking a better life for themselves, sidestep the legal path to citizenship through immigration by claiming to be fleeing persecution. Those who ask for asylum are often released pending a court hearing on their claims, which, because of our overburdened courts, can take an average of four years. About 60 percent of the migrants who finally show up for court dates are denied asylum — a sure sign that the asylum system is being abused. Some don’t show up at all.
Through executive orders, Mr. Biden can require that those who seek asylum do so only at ports of entry and can limit those numbers in view of the backlog of over three million cases. Those who cross at places in between will, if apprehended, be turned back. That would create huge backups, but it would reduce the numbers significantly. Mr. Biden could also repeal his administration’s decision in 2021 to greatly widen the right to asylum to include people who claim to be threatened by domestic and gang violence. That goes well beyond the kind of persecution, epitomized by the Nazi persecution of the Jews, that inspired the United Nations convention and the Refugee Act.
Many undocumented migrants have also been admitted temporarily through what is called parole, which admits migrants “only on a case-by-case basis for urgent humanitarian reasons” or for “significant public benefit.” It was conceived in the 1952 law for admitting, for instance, people who needed extended medical care. But Mr. Biden applied it whole hog to classes, groups and nationalities. These included Afghans, Cubans, Haitians, Venezuelans and Ukrainians. Over 300,000 migrants were admitted in fiscal year 2023.
A case can certainly be made for the president to raise the refugee cap to admit Afghans who aided the United States in a losing war and face retribution or to Ukrainians seeking temporary refuge from Russia’s invasion. But under Mr. Biden’s expanded use of parole, it is being used to admit people — many of whom are economic migrants — from countries whose regimes the United States simply disapproves of. Mr. Biden can abandon this use of parole without any action from Congress.
He can also continue building the border wall that the Trump administration began (something the administration restarted in late 2023). Doing that won’t stem the current flow of the undocumented because it could take up to 10 years for the wall to be completed. But it would eventually discourage some illegal immigration, as the wall on the California border did decades ago.
All that said, to fully address the challenge posed by illegal immigration — to address the incentives for coming to the United States in the first place as well as the ability of our system to process those seeking legitimate asylum and remove those who have broken the law — will take a comprehensive effort by Congress. Even under the executive orders described above, illegal border crossings and visa overstays would continue, America’s ports of entry would become madhouses, and America’s undocumented would remain in a fiscal and labor limbo.
Congress could adopt three kinds of measures — and I will say at the onset that unfortunately, it is unlikely that these measures will pass. First, a national requirement, backed up by harsh penalties, that employers verify the legality of prospective hires through an anti-counterfeit “e-verify” system run by Social Security and the Department of Homeland Security. A version of this was originally proposed in 1981 by a congressional commission chaired by Theodore Hesburgh, the Notre Dame president and civil rights leader, and it was in the H.R. 2 bill that passed the House last May. It would significantly reduce the attraction illegal immigration has held for economic migrants.
Second, strengthen border protection along the lines proposed by the Senate bipartisan bill. That would include H.R. 2’s proposal to raise the criteria for establishing an initial claim of asylum from there being a “significant possibility” that a court would accept the claim to it being “more likely than not” that it would. Increase funding for asylum officers, immigration judges, and border agents, as the Senate bill proposed. And — what was not in the Senate proposal — work with Central American countries to shut down the smuggling business.
Third, grant undocumented workers and their families, who hold jobs and have lived respectfully in the United States, a path to legal employment and residence, as was suggested in comprehensive immigration bills in 2006, 2007 and 2013.
These three initiatives need to be enacted together. If Congress simply granted the undocumented a path to employment and legal residence, as some Democrats advocate, it would spur more illegal immigration, as amnesty under the 1986 Immigration Reform and Control Act might have done. If Congress were to pass employee verification and border protection without granting a path to employment, as H.R. 2 proposes, that could plunge the undocumented into the labor black market and even the criminal underworld. The three measures together would go a long way toward eliminating the undocumented underclass.
America could once again boast of being a nation of laws. Employers in the service sector would have to raise wages to attract workers who now have to depend on social programs and tax subsidies to avoid poverty. And if the country needed more immigrants than it was getting through its current laws, it could do so by raising the annual limits on legal migration.
Realistically, for the near term, these congressional proposals come out of bills that have already been rejected or tabled. That leaves the onus of doing something squarely on the Biden administration, which will do itself and the country a favor by acting even if it can do so only in a limited fashion.
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