How has Biden used his executive authority on immigration?

(NewsNation) — With a record number of migrants crossing the southern border, President Joe Biden has said he’s done “all I can do” and is calling on Congress to approve a bipartisan border deal that would grant him authority to “shut down” the border when it becomes “overwhelmed.”

“If the bill were a law today, [the border] would qualify to be shut down right now,” Biden said at a press conference Tuesday.

House Speaker Mike Johnson, R-La., disagrees with the president’s framing and insists Biden already has the authority to end the crisis but refuses to do so. He says the Senate bill would be “dead on arrival” if it reaches the House and “won’t come close to ending the border catastrophe.”

Data suggests Biden has been quick to use his executive authority during his first three years, undoing several Trump-era policies while expanding opportunities for legal immigration.

So far, Biden has taken 535 executive actions related to immigration, surpassing former President Donald Trump’s four-year total of 472, according to the Migration Policy Institute (MPI).

The president’s active policymaking is, in part, a response to congressional inaction, but it’s also made it hard for Biden to disentangle his policies from the border surge. Now, most swing state voters prefer Trump on immigration.

What could Biden do about the border on his own?

Johnson has urged Biden to take executive actions that would end “catch-and-release” policies, reinstate Trump’s “remain in Mexico” program and grant parole on a “case-by-case basis” rather than using it “for entire classes” of migrants.

All of those decisions are currently within Biden’s control, said Jessica Vaughan, the director of policy studies for the Center for Immigration Studies.

“He not only has the power, he has a mandate from Congress to do certain things with respect to people who are crossing the border illegally,” Vaughan said. “What the Biden administration has done is basically apply the exceptions as the rule.”

Instead of detaining apprehended migrants as the default, over 85% of them have reportedly been released into the country while they await court dates — hence the phrase “catch-and-release” used by critics of the current system. Vaughan said Biden could use his existing authority to declare an emergency and expand expedited removal as Trump did with Title 42.

But for additional enforcement, Muzaffar Chishti, a senior fellow at the Migration Policy Institute, said congressional funding is key.

“[Biden] can do a lot more if he had the resources and the personnel,” he said. “A lot of the crisis that we have seen today at the border is a lack of crisis resources.”

The U.S. has laws that require the government to consider asylum claims, but without sufficient resources to vet those claims, the system gets overburdened, and border officials have no choice but to release people, Chishti noted.

When it comes to humanitarian parole, the Department of Homeland Security (DHS) has the power to temporarily allow certain non-U.S. citizens to enter or remain in the United States even if those migrants don’t have a legal basis for staying.

Over the past year, 327,000 migrants from Cuba, Haiti, Nicaragua and Venezuela have arrived lawfully under the parole processes. Under the same authority, the U.S. has also admitted tens of thousands of Ukrainians fleeing the Russian invasion and nearly 80,000 Afghans after the Taliban takeover.

“Biden does have more tools at his disposal than he’s been willing to use, and he’s also been aggressive in using his executive authority in a very expansionist way,” Vaughan said.

What has Biden already done on immigration?

After initially keeping the policy in place, Biden ended Title 42, a pandemic-era rule that allowed border authorities to quickly expel migrants without processing them for asylum. In its place, DHS introduced new incentives for migrants arriving at ports of entry and warned that those caught under expedited removal would face stiffer penalties.

The Biden administration also suspended Trump’s “remain in Mexico” policy, which required asylum-seekers to wait for U.S. hearings in Mexico. Instead, the White House is setting up regional processing centers for migrants to apply for asylum in Guatemala and Colombia.

However, MPI found that most of Biden’s executive actions were not aimed at undoing Trump administration policies.

Biden launched a parole program to admit certain people coming from Cuba, Haiti, Nicaragua and Venezuela provided they had a financial sponsor and flew to the U.S. rather than arrive at the border. That program capped the number of migrants at 30,000 per month.

The president has also directed DHS to pause deportations of migrants who pose little or no national security risk, a policy the Supreme Court upheld in June.

“Just in terms of the number of people whose lives on a daily basis are different under the Biden administration — that’s a huge existential difference,” Chishti said.

After falling to a record low under Trump, refugee admissions have rebounded and are on pace to reach the highs of the 1990s. Other forms of legal immigration have soared under Biden. Nearly 1.2 million immigrants became lawful permanent residents, also known as green card holders, in fiscal year 2023, more than the annual average over the decade before the pandemic, according to MPI.

All of those actions took place without federal legislation.

What can Congress do about immigration?

It’s been decades since the last major immigration bill, and the new Senate proposal includes several changes to the country’s immigration law, although it’s unlikely to go anywhere.

Most significant is a provision that would require the government to declare an immigration emergency if the average number of migrants surpasses 5,000 over a week. Once that emergency is declared, the government would no longer consider asylum claims for those caught crossing between ports of entry.

Biden has vowed to use that power “the day I sign the bill into law.”

The bill also raises the bar for what qualifies as a legitimate asylum claim and streamlines the screening process.

Writing those changes into law could make them more likely to survive legal challenges than if Biden had done them on his own.

The legislation would also provide $6.8 billion for Customs and Border Protection, $7.6 billion for Immigration and Customs Enforcement and $3.99 billion for Citizenship and Immigration Services.

Those funds would be used to pay for 4,300 additional asylum officers, 1,500 border agents, 100 fentanyl detection machines and 100 more immigration judges, Biden said Tuesday.