Can’t sit this out
Gov. Hochul struck a good tone this week with her letter to President Biden, imploring executive actions on migrants, including facilitating faster work authorizations, providing more funding and authorizing the use of federal space and facilities for shelters. Unfortunately, it’s unlikely the president will budge.
Biden is facing problems legal and political. On the legal front, it would be difficult to redirect relief funds that haven’t already been allocated by Congress, and providing work authorization for asylum seekers isn’t as simple as signing an executive order. There’s a statutory prohibition on work authorization for asylum seekers until six months after they’ve applied for asylum — not six months after they’ve been apprehended, or passed a credible fear interview, or been released — and processing times stretch that much longer.
It is in the law in black and white, and only Congress, which has proven to be worse than useless at figuring out even minor tweaks to the immigration system, could possibly change it. Still, Biden has at his disposal two programs — humanitarian parole and temporary protected status, which both Adams and Hochul have now pushed him to use — that could achieve this goal, right? In theory. But it is extraordinarily dubious whether using either program this way would pass muster.
Parole is constructed in the law as a relatively narrow, discretionary grant “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” The administration has stretched that definition with its specific parole program for Cubans, Haitians, Nicaraguans and Venezuelans, over which it is being sued by Texas and 20 other states. If these structured programs are in legal jeopardy, generalized parole for asylum seekers will be doubly so.
Temporary Protected Status is more feasible, but it still requires a Homeland Security finding that a country of origin is facing some dire circumstance that would prevent people from being safely returned. Put another way, the department would have to find, independently, that every country from which a significant amount of migrants are coming is experiencing an acute emergency that merits designation, and that wouldn’t apply to anyone who arrived after the designation anyway. Donald Trump’s attempts to wrangle TPS in the other direction, by arbitrarily terminating it, were blocked by the courts, and Biden could expect significant scrutiny if he tried to use it for this.
As uncertain as success would be, however, Biden could just try all this anyway and see what happens; Trump certainly never gave much thought to whether his immigration policies were strictly legal, instead taking the approach of throwing it at the wall and seeing if it sticks. That brings us to the other obstacle: politics. Biden simply doesn’t want to be seen as owning this issue, certainly not to the level of risking a protracted court battle. He seems to believe that staying out of the fray will protect him politically as the GOP tries to tar and feather him over immigration.
He’s wrong. The lack of a forceful response has just made the issues far worse and fed the perception of chaos. The best thing for his image would be to take charge, and prove that GOP intransigence and recriminations won’t stop him from finding better paths forward.