President Joe Biden on Tuesday is set to sign an executive order that will give him the authority to limit crossings at the U.S.-Mexico border when a certain threshold is reached, an aggressive move to restrict encounters at the border — which have declined in recent months — and address a key issue on voters’ minds ahead of November’s election.
The president’s actions will bar migrants who cross the border illegally from seeking asylum, shutting down the border when encounters hit a certain number, according to a senior administration official.
The restrictions will go into effect when the number of daily illegal crossings tops 2,500, and will stay in effect until two weeks after there are seven consecutive days of less than 1,500 daily encounters between ports of entry, as determined by the Secretary of Homeland Security. There are some humanitarian exceptions, including for unaccompanied children, victims of trafficking, an acute medical emergency or an imminent threat to life or safety.
Migrants who make appointments using the CBP One app, created by the U.S. Customs and Border Protection which handles roughly 1,450 appointments per day, would also be exempt.
The rule will go into effect later Tuesday. Daily encounters are higher than the 2,500 figure, so it could be implemented as soon as it’s signed.
A senior administration official said that the goal of Biden’s actions is to “significantly increase consequences for for those who cross the southern border unlawfully, without authorization.”
Biden will unveil the action at the White House on Tuesday afternoon joined by mayors and governors from across the country, including two Texas border mayors: Brownsville Mayor John Cowen and Edinburg Mayor Ramiro Garza. The White House hailed the fact that “most” of the guests at Tuesday’s event are from border communities.
“They’re working on these issues day in and day out, and, like the president, they want balanced solutions,” a senior administration official said.
It’s the most restrictive immigration policy put into place by any modern Democratic president, and Biden’s first major step to address border security since Republicans killed a bipartisan border security compromise earlier this year. The White House took the opportunity to hammer the GOP for scuttling the bipartisan agreement — negotiated by Oklahoma Sen. James Lankford, a Republican, Connecticut Sen. Chris Murphy, a Democrat, and Arizona Sen. Kyrsten Sinema, an independent — earlier this year at the urging of House Republicans and former President Donald Trump.
A senior administration official charged that Republicans killed the compromise because they “would rather weaponize problems than fix them.”
“Congressional Republicans had an opportunity to support the fairest and toughest set of reforms in decades, and they chose to put partisan political interests ahead of fixing our immigration system and securing our borders,” the official said.
“Fortunately, across the country, there are elected officials, Republicans, Democrats and independents, who share President Biden’s strongly held belief that we must have smart, balanced approaches to immigration,” they added.
The action will no doubt face legal challenges, but an administration official said that they “look forward” to defending the rule. The American Civil Liberties Union already vowed Tuesday that it would sue the Biden administration over the order, saying it puts "tens of thousands of lives at risk."
"This action takes the same approach as the Trump administration's asylum ban," the ACLU wrote on X, the platform formerly known as Twitter. "We will be challenging this order in court."
The move was met with some support from Biden’s own party, particularly from those who backed the bipartisan border bill killed by Republicans.
At the White House on Tuesday afternoon, Arizona Sen. Mark Kelly called the order "a very good step forward" that will "make a big difference" at the border.
Kelly condemned the Republicans who killed the immigration bill, saying that his state "deserves a real solution at the border," contending that "it fell apart in the last minute because the former president decided that he wanted this as a campaign issue." He called on Congress to do more to enact "comprehensive immigration reform."
“It’s important that the president is planning to take decisive action given the fact that extreme MAGA Republicans have decided to try to weaponize the challenges at the border,” said House Democratic Leader Hakeem Jeffries, D-N.Y., at a press conference Tuesday morning.
Senate Majority Leader Chuck Schumer, D-N.Y., chided his Republican colleagues for not taking action to enact legislation to address the border, saying that it "would have been the more effective way to go."
Schumer went on to say that Biden preferred to take the legislative route to address immigration, but: "given how obstinate Republicans have become, turning down any real opportunity for strong border legislation, the president is left with little choice but to act on his own."
The chairs of the Blue Dog Coalition, a group of moderate House Democrats, called Biden's action an "overdue step" but said that more needed to be done in order to secure the border, calling on the White House and other members of Congress to take action.
"This job is far from over," declared Washington Rep. Marie Gluesenkamp Pérez, Maine Rep. Jared Golden and Alaska Rep. Mary Peltola, along with North Carolina Rep. Don Davis.
But progressive Democrats and Republicans alike decried the action — though for wildly different reasons.
Prior to the announcement on Tuesday, Trump’s campaign panned Biden’s plan as “mass amnesty to destroy America.” On a press call, former acting director of Immigration and Customs Enforcement Thomas Homan and Trump aides Jason Miller and Stephen Miller framed the order as part of a conspiratorial scheme by Biden and Democrats to flood the country with immigrants and turn them into Democratic voters. That claim is in line with the Great Replacement Theory, a false conspiracy theory that has inspired racist mass shootings in the U.S. and elsewhere.
"The other thing that's very important about this plan is it is a pro-child slavery, pro-child trafficking, pro-child sexual servitude," Trump campaign senior advisor Jason Miller said on the call prior to Biden's announcement, citing the exceptions in the executive order for unaccompanied minors and victims of trafficking. "So the message to the cartels and the smugglers is you have the greenest of green lights to smuggle and traffick children into this country into various forms of servitude, slavery, sex trafficking, labor trafficking and other forms of abuse, imprisonment and torture."
Texas Sen. John Cornyn, a member of Senate GOP leadership, questioned the timing of why Biden waited to unveil the order before responding to his own query by charging: “The simple answer is he’s not serious.”
House Speaker Mike Johnson expressed a similar sentiment, calling Biden's action "window dressing" while charging that the president and Homeland Security Secretary Alejandro Mayorkas, who his chamber impeached earlier this year, "engineered" a border crisis.
"If he was concerned about the border, he would have done this a long time ago," Johnson said, while acknowledging that he had not yet seen the president's order. "The devil will definitely be in the details here, I can assure you."
Rep. Pramila Jayapal, D-Wash., the chair of the Congressional Progressive Caucus, called Biden’s actions “extremely disappointing.”
“Democrats cannot buy into cruel enforcement-only measures that have failed for 30 years,” she wrote on social media ahead of the announcement. “We need real, humane reform that expands legal pathways.”
“I'm disappointed that this is a direction that the President has decided to take,” California Rep. Nanette Barragan, the chair of the Congressional Hispanic Caucus, told reporters on Tuesday. “We think it needs to be paired with positive actions and protections for undocumented folks that have been here for a long time.”