This article was originally published in the Dispatch on February 14, 2024.
The U.S. began the new year facing the highest monthly number of migrant encounters in the 21st century: more than 300,000. Monthslong bipartisan negotiations led by Sens. James Lankford, Chris Murphy, and Kyrsten Sinema culminated in legislation meant to meter the tide of new asylum applications and supplement the processes and personnel needed to tackle mushrooming backlogs.
But recognizing the border crisis is a political liability for President Joe Biden in an election year, congressional Republicans and former President Donald Trump—despite previous statements clamoring for congressional action on immigration—tanked the legislative effort, angered voters, and created new questions about the president’s authority on immigration.
Now, many Republicans suggest it’s the president’s responsibility to use existing authorities to unilaterally “close” the border. “The historic crisis at our Northern and Southern Borders is by design and Joe Biden is to blame,” Rep. Elise Stefanik tweeted last week, citing an article from The Federalist. Though the article’s headline is unequivocal—“Biden Has The Power To End The Border Crisis Without Congress. He Just Doesn’t Want To”—the claim that “[w]ith one stroke of a pen, our commander-in-chief could authorize the return of law and order to our border by shutting it down” is dubious. Tellingly, that sentence does not include a citation simply because the scope of executive authority is a complicated issue that cannot be boiled down into a catchy sentence.
House Speaker Mike Johnson tweeted about the suite of authorities available to the president on immigration—“Presidential Authority to Restrict Entry 212(f) […] Expedited Removal 235(b)(1) […] Discretionary Detention Authority 236(a) […] Mandatory Detention 236(c)”—and said Biden was either “lying or misinformed” about the scope of this authority.
But even President Trump never “closed” the border, despite his best efforts to use and expand executive authorities. At the height of the pandemic and during the Title 42 emergency that “shut down the border,” the U.S. processed more than 1,000 new principal asylum filings and admitted more than 2,500 refugees between August and September 2020 during one of the most restrictive periods of immigration in our history.