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Biden’s Border Policy – Beyond the Soundbites

The president’s executive order might not do what the headlines suggest.

With illegal immigration either topping the polls or coming in a close second on the list of voter concerns this election cycle, President Joe Biden has done what most long-serving politicians tend to do when the issue is against them: the bare minimum to generate a headline. Such is the case with the current president’s executive action on the border, released Tuesday, June 4. After drumming up significant media coverage, with speculation driven by “sources,” what does Biden’s response to public anger change?

Bold Border Claims

“Since his first day in office, President Biden has called on Congress to secure our border and address our broken immigration system. Over the past three years, while Congress has failed to act, the President has acted to secure our border,” the White House fact sheet reads. Such a declaration may surprise Americans who watched as more than 60 initiatives were taken by the administration to “secure” the border, each followed by an increase in illegal crossings.

Yet, it is not the posturing as the “border president” that really defines the latest executive order; it is the fact that it doesn’t do very much at all. The very first tenet of the order is that it will: “Bar Migrants Who Cross the Southern Border Unlawfully From Receiving Asylum.”

Surely that is a plain-as-day policy that those concerned about illegal immigration can get behind? Well, perhaps it would be if it weren’t mitigated by the three paragraphs that followed it.

When Is Illegal Illegal?

“President Biden issued a proclamation under Immigration and Nationality Act sections 212(f) and 215(a) suspending entry of noncitizens who cross the Southern border into the United States unlawfully. This proclamation is accompanied by an interim final rule from the Departments of Justice and Homeland Security that restricts asylum for those noncitizens.”

A plain reading so far would suggest that those who break the law by entering the country illegally will be barred from claiming asylum — and that may be true if it weren’t for the caveats:

“These actions will be in effect when the Southern border is overwhelmed.

“They will be discontinued when the number of migrants who cross the border between ports of entry is low enough for America’s system to safely and effectively manage border operations.”

The fact sheet seems to be saying that illegality here occurs only when a certain number of illegal crossings take place. Indeed, multiple media outlets that have spoken with senior administration officials say the same thing: This will apply only when a seven-day average of more than 2,500 illegal crossings per day occurs – meaning that every week, at least 17,500 illegal migrants could be permitted into the US interior before agents seek to prevent further crossings. That’s almost one million a year (910,000). The block will be lifted once that figure drops to 1,500 per day.

Of course, this figure does not include those who are known as “gotaways” – people who do not stop to register with agents when they cross the order. But again, the further you dig, the more you find.

Once the 2,500 crossers threshold is reached, border officials will stop carrying out “credible fear” interviews. And yet, according to The Hill, “there will be exceptions.” These exceptions include unaccompanied minors and – pay attention now – those who display a credible fear of returning to their country. So, in reality, any individual who expresses the notion that they will be persecuted upon return to their country will be permitted entry.

And then comes the most resounding element. As The Los Angeles Times puts it, “The restrictions would not apply to those who enter at official ports of entry or use other legal means, including those who use a relatively new mobile app to request an appointment.” So, in fact, this Executive Action only applies to those who cross the border away from regular ports of entry.

Unpopular Opinion?

The president is keen to be seen to be doing something on illegal immigration and the porous southern border – even if actually doing something would be an even easier lift. One might assume that the only objections from within his party were from those who do not want entry to the United States limited at all. And yet, this is a particularly polarizing political season, and seats are won or lost on coattails.

“Several Democrats in competitive Senate races have declined President Biden’s invitation to join him [June 4] at the White House when he announces drastic new action meant to crack down on illegal border crossings,” Axios reported. “Lawmakers in swing states have pushed for stricter border rules, but some may keep the president at arm’s length as they consistently poll better than him in their states,” the site detailed. The reporting continued:

“The White House invited all Democratic senators to join Biden at an event announcing the new executive actions. But at least Sens. Jon Tester (D-MT), Tammy Baldwin (D-WI), Jacky Rosen (D-NV) and Bob Casey (D-PA) – all of whom are seeking re-election in battleground states – will not attend. Some cited scheduling conflicts.”

And it’s not just lawmakers who are irked at the president.

Within minutes of Biden announcing the policy, the ACLU reared its head, stating, “We intend to sue.” ACLU lawyer Lee Gelernt said, “An asylum ban was illegal under Trump and is just as illegal now.” And it will likely not be the only organization looking to sue. How many illegal border crossers – including those with a genuine claim to asylum – will be denied entry because they were the 2,501st in line? Litigating for the “newcomers” is big business – a business that is well-funded and unafraid of tackling the federal government.

But does it matter if President Biden’s orders are stopped before they even get started?

The content of these plans suggests that limiting the number of individuals making an illegal crossing is far from the goal. Mr. Biden can now announce to all the media that he is trying to fix the border but is being blocked at every turn by Republicans in Congress or NGOs in the courts. Whether the public will see this as anything more than a fig leaf to cover political embarrassment will be determined in November.

Read More From Mark Angelides

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