Biden must beware a border bungle
Amid the continuing political furor over migrant arrivals, President Biden is considering attempting to enact via executive actions asylum restrictions that are reminiscent of some of his predecessor’s efforts — efforts he once correctly decried as cruel. We’re sympathetic to the president’s desire to act on this issue, as he’s suffering politically and Republicans have backed out of a bipartisan plan that they negotiated and agreed to.
Action is needed and we have been pressing the administration for months to provide funding, logistical support, work authorization and other assistance to NYC and other cities receiving migrants. But using iffy restrictionist authorities, even as NYC’s budget woes start to fade, is a risky way to go.
It might not even pass legal muster. Barring people crossing between ports of entry from seeking asylum is almost certain to fail in the courts given how explicit asylum law is about this not being an impediment. In fact, a similar policy was one of the Trump administration’s earlier efforts to restrict asylum, and it was quickly tossed out by a judge.
Biden is right that the provision, known as 212(f), gives the president broad powers to control the border, but even Donald Trump’s expansive travel bans targeting Muslims, Africans, and then people from around the world during COVID were somewhat targeted.
It’s unlikely that any court will agree that a president can simply remake asylum law, and even if one did, that’s a terrible precedent. Presidents are not kings, and must be constrained by the statutory framework and legal principles as delineated by the other branches of government. That’s why the optimal solution here is for Congress itself to act, to go through the deliberative process it so fancies itself a paragon of and arrive at a legislative solution.
Congress, of course, already did, and while there was a lot not to like about the bipartisan border bill negotiated over months in the Senate, at least it was concretely an effort to move forward towards some sort of policy. Despite its many faults, it could have formed the starting point for something better-designed down the road.
Instead, the deal was unceremoniously killed by MAGA legislators at the direction of their wannabe strongman presidential candidate and coup enthusiast, and the door on any sort of action is all but definitively closed until after November’s elections.
Hopefully, Democrats will finish whittling down the razor-thin GOP House majority, already started by Tom Suozzi’s victory on Long Island, and take back control of the chamber while holding onto, or even expanding, their grip in the Senate.
Perhaps then they can move on with crafting a bill that jettisons some of the more draconian Republican priorities and finally throws in some long-needed reforms, including creating pathways to citizenship for people who have long lived in this country without a chance to fully participate in civic and political life.
When all is said and done, let’s hope the GOP leadership, in all its short-sightedness, rues the day that they rejected a bill that was as favorable as they were ever going to get, and Biden can sign legislation that institutes real fixes to our teetering system while staying true to the values that gave this country global strength.