Before Republicans torpedoed it, the bipartisan Ukraine and border security deal this year provided a rare opportunity for President Biden.
Republicans seemed to sniff this out. Despite Biden’s offering them plenty of what they had wanted for years — specifically, much tougher asylum restrictions — they decided to walk away, apparently in part to help Donald Trump in an election year by denying Biden a policy victory that might have lessened his political burden on the border. Congress later passed Ukraine funding anyway, and here we are.
Now it appears we’re also going to get some of those asylum restrictions, too — at least temporarily, thanks to an executive order Biden is set to sign Tuesday.
Biden’s idea appears popular. But it’s on shakier ground both politically and legally than a border deal would have been.
The executive order would cut off asylum claims when illegal border crossings exceed a daily threshold — probably 2,500 — as The Washington Post’s Nick Miroff and Toluse Olorunnipa reported. Standard processing would then resume when crossings drop below 1,500. Given we’re currently seeing about 3,500 daily crossings, the shutdown should take immediate effect and could last a while.
The first thing to note is that Americans writ large seem to be notionally on board with this. The country has drifted in a distinctly immigration-skeptical direction in recent years, and asylum is no exception:
- A March Associated Press-NORC poll showed Americans agreed 53 percent to 24 percent that we should “reduce the number of immigrants who are allowed to seek asylum.”
- An Ipsos poll last month showed Americans supported requiring asylum seekers to remain in Mexico while awaiting a ruling on their claims, 61-20.
- Just 24 percent in a January Economist/YouGov poll said asylum seekers should be allowed to live in the United States until their case is resolved.
Polling asylum is difficult, because Americans are largely sympathetic to those fleeing persecution in their homelands. But there seems to be agreement that this process is being abused or at least causing an unsustainable situation on the border, and that it shouldn’t be a “get into the United States free” ticket.
That said, it’s not the clear win-win that a deal including Ukraine funding and border action would have been.
One reason is that while even many Democrats want to get tougher on the border, Biden’s move risks alienating a substantial chunk of his party — and especially key constituencies that he happens to be struggling with already.
- A November New York Times/Siena College swing-state poll showed that the groups least supportive of making it harder to claim asylum were Democrats (31 percent), young people (32 percent) and Black voters (38 percent). Young voters and Black voters are balking at supporting Biden more than they have for any recent Democratic presidential candidate.
- A January Pew Research Center poll showed Hispanics — another key group that Biden is underperforming with — were about evenly split on whether making it harder for asylum seekers to gain temporary legal status would improve the situation on the border.
- Similarly, the AP-NORC poll showed just 35 percent of Democrats agreed that we should reduce the number of immigrants allowed to seek asylum.
A big question is how much Democrats push back on Biden. We’re starting to see some critics summon their voices — albeit somewhat gently. Will they give him the berth to do this kind of thing in hopes that it could help him in November?
Beyond that are the potential legal and practical problems.
Republicans’ big argument when they walked away from the Ukraine/border bill was that Biden didn’t even need legislation to shut down the border — this despite their years of claiming the opposite. Now he’s effectively testing that out.
But it could prove to be a temporary and ineffective fix without Congress codifying the changes. The right to seek asylum is protected by law. Trump’s efforts, as president, to crack down on the border and asylum seekers were often overturned by the courts. Biden is relying on a similar authority. And experts are skeptical that courts will sign off on Biden’s order or that it can even be carried out without Congress authorizing additional resources.
Biden has in the past expressed openness to trying to go his own way when Congress won’t cooperate, even at the risk of being overturned by the courts. When he pushed forward with an eviction moratorium in 2021, he acknowledged that “the bulk of the constitutional scholars say it’s not likely to pass constitutional muster.”
“But at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are in fact behind in the rent and don’t have the money,” Biden said.
The Supreme Court indeed soon overturned the eviction moratorium.
The calculation with his asylum executive order appears similar: It might not work, but the border situation is so bad (and politically troubling for him) that it’s worth trying. And if it’s struck down, he can at least point to how Republicans blocked a more sustainable solution.
In the meantime, though, Biden has a sales job with his base.
