Just how much power does the president have to close off the asylum system?
That question is quickly becoming one of the key flashpoints over the Senate’s bipartisan border security package, even as the text of the deal has yet to be publicly released.
During a speech in South Carolina this weekend, President Biden promised that he would “shut down the border right now and fix it quickly” if Congress were to pass the legislation. In doing so, he appeared to be touting a provision of the bill that would give him authority to halt many new asylum claims and quickly expel migrants if daily crossings at the U.S.-Mexico border rise above a certain level.
That same section of the deal has already come under attack from conservatives in the House and Senate, who have criticized it for being too lenient. “Any border ‘shutdown’ authority that ALLOWS even one illegal crossing is a non-starter. Thousands each day is outrageous. The number must be ZERO,” Speaker Mike Johnson tweeted on Monday.
While the Senate deal would not literally empower the administration to shut down the entire southern border, it would provide significant new authority to turn back the kinds of asylum-seekers who have overwhelmed the government’s capacity to process new arrivals and stretched some cities’ safety nets close to the breaking point.
Under the proposal, as described by two sources briefed on the talks, the president would be permitted to temporarily halt new asylum claims by foreigners who arrive in the United States anywhere other than an official port of entry if border crossings reach 4,000 a day over a two-week period. Federal officials could then quickly turn back those migrants to Mexico without a hearing. Such a “shutdown” would become mandatory if the daily number of crossings reached an average of 5,000 over a week or 8,500 in one day.
The US experienced about 10,000 border crossings per day in December, the latest month in which data is available.
Even in the event of a shutdown, the U.S. would continue to process 1,400 asylum claims per day by people who do arrive through an official port of entry. (According to one source, those migrants would count toward the 4,000 needed to trigger the president’s emergency powers.) There’s also a cap on the number of days the emergency authority can be used in a year, both sources said.
In many ways, the new authority looks like an iteration of Title 42, the emergency measure that the Trump administration used to swiftly expel migrants during the pandemic, and which Biden wound down. But it would still represent a major departure from today’s law, which allows migrants to apply for asylum regardless of where they enter the country — and under ordinary circumstances does not allow the president to close off the system through executive action, according to experts who spoke with Semafor.
The right for a person entering the U.S. to request asylum is currently embedded in immigration law through a 1980 change to the Immigration and Naturalization Act, among other statutes in the books, experts noted.
“We still have the [UN] Convention Against Torture. There are still provisions that prevent people from being summarily expelled and of course, the Trafficking Victims Protection Act protects unaccompanied children,” David Bier, the associate director of immigration studies at the right-leaning Cato Institute, told Semafor. “So there are both legal and practical impediments to expelling people under current law.”
The View From Conservatives
Congressional conservatives are also pushing to give the White House new emergency powers to curtail asylum claims, but want to put fewer limits on when that authority can be used. The House GOP’s party-line border security bill, known as H.R. 2, would let the president begin turning back asylum-seekers any time the Department of Homeland Security deems it necessary to maintain “operational control” of the border. Johnson’s office argued on Monday that any legislation Congress passes should take that approach, which would give broader leeway to a potential Trump administration.
Sen. Ted Cruz, R-Texas, one of the bipartisan deal’s chief critics in the Senate, argued last week that the emerging package would “normalize” 5,000 border crossings a day by making that the trigger for a mandatory shutdown. “That works out to over 1.8 million illegal aliens a year, or 6 million under the 3 years of Joe Biden,” Cruz told Fox Business. “That is absolutely unacceptable.”
The GOP’s lead negotiator on the Senate deal, Sen. James Lankford, R-Okla., has ripped such characterizations as inaccurate, however, and described the new emergency powers as the “most misunderstood section of the proposal.” Speaking on Fox Business, he argued that the measure was simply designed to kick in when the number of migrants outstrips the government’s ability to handle them.
“When we got 4- or 5,000 people crossing the border, we can no longer process those individuals. So right now, the Biden administration is just releasing them into the country,” Lankford said. “This is a new authority to say, when we can no longer detain and deport, when we can’t process the people and actually make a decision right there at the border, then we’ll actually turn those folks back around to Mexico and say, ‘We can no longer do this.’”