Clash of incentives and law at the U.S.-Mexico border
Earlier this month, the Supreme Court ordered the Biden Administration to reinstate the “Stay in Mexico” policy for those waiting for asylum hearings. This order, like most judicial action in this area, will have no practical effect.
President Biden promised in his campaign to change the way America treated immigrants who crossed the U.S. border illegally. He has fulfilled that promise. President Trump’s administration had sent back to Mexico those crossing the land border who sought asylum in the U.S. until the U.S. immigration courts could hear each individual’s case. In December 2018, he announced “Stay in Mexico,” an agreement with Mexico to allow this approach. In June, President Biden rescinded that policy. Those who crossed the border illegally would now be allowed to reside in the United States until their cases for asylum could be heard: months, even years, after entering.
The Supreme Court’s recent 6-to-3 decision against Biden ordered him to use good faith efforts to resume the “Stay in Mexico” policy. Accomplishing that requires Mexico’s compliance, however. In 2018, President Obrador acceded to President Trump’s request because of threats of tariffs on Mexican imports. President Biden has not renewed that threat. From a constitutional separation-ofpowers perspective, the Court cannot order President Biden to carry on negotiations with another country in a particular manner. So, without Mexico as a partner, the “Stay in Mexico” policy is at an end.
The court is limited in its ability to fix the border problem by other means as well. Immigration law requires applicants for asylum to be detained pending their hearing. Citing a lack of space, the administration has waived this requirement for all asylum-seekers, using a provision of law designed for “caseby-case” humanitarian exceptions. Courts cannot order the Congress to build more detention space. Confronted with overcrowded prisons in California, for instance, federal courts could only order release of individuals from detention, not the construction of more prisons. Thus, the requirement that asylum-seekers be detained pending their hearing will go the way of a myriad of other federal laws: a requirement on paper only.
Even if more detention space were built, children could not be held in them. President Trump originally separated children from their parents to keep the parents in detention. This generated such outcry against separating families that the Trump administration recanted. Hence, families with children seeking asylum will be released into the general population once the COVID-19 restrictions on immigration are lifted. Even under the COVID-19 restrictions, unaccompanied minors are currently being allowed into the general U.S. population.
Today’s situation at the border is beyond the power of courts to fix. It is the result of laws passed by Congress and an administration that is content with the incentives those laws create. Asylum can be claimed by anyone who is actually in the US asserting a wellfounded fear of persecution in their own country based on race, religion, gender or socioeconomic status. This creates an incentive to cross the border, whether legally or illegally, to be able to make the claim. The incentive to bring a child along is also clear: that fact will keep the entire family out of detention. Just being released into the general U.S. population is the desired goal for many. Well more than 90% of asylum claims are rejected, so why face those odds if, instead, you skip the hearing and live an unmolested life in America for years, waiting for a general amnesty, or not even caring if there is one or not?
Asylum was intended for individuals like those presently fleeing Afghanistan. There are many others who seek to come to America for a better life and are willing to work hard to achieve it; our regular immigration processes were designed for them. While there is no strict trade-off between these groups, America cannot absorb all who want to come here, and we need to distinguish between these categories.
Tom Campbell is a professor of law and of economics at Chapman University. He served five terms in the House of Representatives, including the Judiciary Committee and the International Relations Committee. He left the Republican Party in 2016 and is in the process of forming a new party in California, the Common Sense Party.