House GOP keeps fumbling immigration. Or maybe they’re just incompetent?
House Republicans in recent weeks have blown up an immigration deal negotiated by their own party in the Senate and urged President Biden to adopt border measures that courts have found illegal. A cynic might say this is all theater — that Republicans (led by former president Donald Trump) want to keep immigration problems going through the election. But did anyone consider a simpler explanation: that Republicans have no clue how our immigration system works.
Republican lawmakers have been holding up aid for Ukraine and Israel for months while seeking concessions on unrelated immigration measures. Yet after Democrats finally cried uncle, House Republicans said oh, just kidding. They don’t want this deal after all!
House Speaker Mike Johnson (R-LA.) and others now claim Biden doesn’t need new legislation to crack down on the border. Instead, they allege Biden can use his existing authority to reduce immigration by reviving all the executive actions that Trump had put into place.
“If (Biden) wants our conference to view him as a good faith negotiator, he can start with the stroke of a pen,” Johnson said.
There are a few problems with this claim. First, Biden has already issued more than 500 immigration-related executive actions, more than Trump announced over four years, according to the Migration Policy Institute. Biden has arguably exhausted the extent of his presidential authority, and so far his measures haven’t stemmed the tide of border crossings.
Second, if Biden hasn’t revived Trump’s specific policies — as Republicans urge him to do — that’s largely because so many Trump policies were found to be illegal.
Of the 35 major Trump-era immigration agency actions that faced legal challenges, 33 (94%) did not survive litigation — that is, either the court ruled against the relevant agency, or the agency withdrew the action after being sued. These numbers are from the New York University Institute for Policy Integrity’s regulatory challenge database.
Even when Republican-appointed judges presided over such cases, Trump immigration actions were unsuccessful 90% of the time.
To be fair, one specific Trump-era program that Johnson wants to revive, informally known as “Remain in Mexico,” is the subject of legal cases that are still working their way through the courts. But any final court decision on this policy might not matter much.
Why? It’s unclear whether this program ever effectively deterred unlawful border crossings (though it did expose desperate migrants to rape, kidnapping, torture and other dangers). More important, the Mexican government has said it would not cooperate if the United States were to reboot the program, regardless of what U.S. courts decide.
Johnson has also demanded that Biden begin “renewing construction of the border wall.” On this policy, Biden’s obstacle isn’t executive authority exactly. It’s insufficient funding, says Aaron Reichlin-melnick, policy director at the American Immigration Council.
Alas, House Republicans appear unlikely to fund it.
How do we know? Because last year the Republican-controlled House passed a different (much more draconian) immigration bill, known as H.R. 2. This was basically a messaging bill, though lately Johnson has said it’s the only immigration-related legislation his chamber would consider. That bill would require Biden to restart wall construction, as set down in the fiscal 2019 appropriations bill, but it does not give any new funds that would be necessary to build the wall, Reichlin-melnick says.
Similarly, Johnson has demanded that Biden end “catch and release,” which would mean detaining anyone waiting for their asylum claim to be heard in court. But there’s nowhere near enough funding under current law to provide that number of detention beds. Unsurprisingly, H.R. 2 provides zero new money for this objective either.
In other words, the policies that House Republicans claim Biden can adopt “with the stroke of a pen” are outside his pen’s reach — unless Congress passes the bipartisan legislation that these Republicans refuse to consider.
Maybe Johnson and his GOP colleagues claim Biden can do things without lawmakers’ help because they want Biden to look feckless. Maybe they grew so accustomed to Trump’s lawlessness that they figure Biden should be willing to cross a line now and then, too.
But again, there’s a reasonably strong case that the problem here is incompetence.
After all, this week House Republicans unveiled articles of impeachment against Homeland Security Secretary Alejandro Mayorkas for his alleged failures on immigration. Unfortunately, these articles complain about measures taken by a completely different government agency — the State Department — which Mayorkas does not control. Oops. Who can tell these Cabinet secretaries apart, anyway?
In Republicans’ defense, our immigration system is confusing. Lots of people don’t get it. Still, one would hope that politicians paid to understand these things — and who have made immigration a centerpiece of their 2024 campaign — might try a bit harder.