President Biden is using the same 73-word provision in the federal asylum law that then-President Donald Trump used in 2018 to shut down the U.S.-Mexico border.
Trump’s effort ended up getting shot down in federal court, and the ACLU is signaling that it will take up the fight again, this time against the executive order announced by Biden today.
“We must face the simple truth: to protect America as a land that welcomes immigrants, we must first secure the border and secure it now,” Biden said on Tuesday. “If the United States doesn’t secure our border, there’s no limit to the number of people who may try to come here.”
Biden’s order, which goes into effect at midnight tonight, will shut down asylum requests at the U.S.-Mexico border once the average number of daily encounters hits 2,500, with the border reopening only once that number declines to 1,500.
The last time the daily average dipped to 1,500 encounters was in July 2020.
Under the Biden order, migrants ineligible for asylum protection will be returned to their home countries or to Mexico unless they declare a fear of persecution that would qualify them for an exemption.
The ACLU issued a statement after Biden announced his new policy indicating that it will challenge the president’s executive order in federal court.
“We intend to sue,” ACLU lawyer Lee Gelernt said in a statement. “An asylum ban was illegal under Trump, and is just as illegal now.”
With Republicans continuing to block new legislation that would give the president more legal authority to act, Biden, who has been pummeled politically on border issues for the past several months, is constrained from doing much else than trying something that the courts have already said isn’t permissible by law.
Biden is getting not-so-friendly fire from progressive Democrats for today’s action.
“When Donald Trump tried to shut down the border, it didn’t work, and I’m disappointed that the president has, you know, sort of gone into the same frame as Donald Trump at a very time when we need to make a distinction between Donald Trump and Joe Biden,” said Pramila Jayapal, D-Wash., the chair of the House Progressive Caucus.
“What’s happening at the border cannot be solved by enforcement actions only,” Jayapal said. “What it really needs is a modernization of the entire legal immigration system and legal pathways and resources to process people. Two things that Republicans have been completely unwilling to provide.”
Biden stressed in his announcement today that he thinks he’s taking a different approach to border issues than his predecessor, and likely November political opponent.
“I will never demonize immigrants. I’ll never refer to immigrants as poisoning the blood of a country. And further, I’ll never separate children from their families at the border. I will not ban people from this country because of their religious beliefs,” Biden said.
Our two local congressional representatives, both Republicans – Bob Good in the Fifth District, Ben Cline in the Sixth – seem to think that Biden isn’t going nearly far enough.
“Proof positive that Biden created the border invasion – admitting he has the power to slow it down. He should stop it by returning to the Trump policies,” Good tweeted on Tuesday, failing to acknowledge the ultimate failure of the Trump immigration policies in court.
“No accountability, no check-ins – Biden is completely destroying our immigration system and compromising our national security,” Cline tweeted on Tuesday.
Both Cline and Good joined House Republicans in blocking the bipartisan compromise negotiated by Senate leaders to give Biden more legal leeway to close the border and provide billions in money to beef up enforcement efforts from even coming to a vote on the House floor.
The reason for that: because Trump told them to, basically – the ex-president signaled to congressional Republicans that he wanted to be able to use border issues against Biden in the fall campaign.
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Chris Graham
