Biden’s Unlawful Border Executive Order Is Bad Policy

David J. Bier

President Joe Biden announced today that he will impose a near‐​complete ban on asylum for anyone who crosses the border illegally. He will also raise the standard for protection under related statutes that prohibit removals to persecution or torture. The law clearly states that the right to apply for asylum is “irrespective of status” and “whether or not at a designated port of arrival” (8 USC 1158(a)(1)). Biden doesn’t care about the law because he thinks this move will benefit him politically. It will not. This is both bad policy and bad politics.

We should start with the statement that this is not a “new position” for Biden. Since day one, he has enforced the most severe restrictions on asylum in American history—first under Title 42 of the health code and then under Department of Homeland Security regulations in May 2023. He has already enacted more than 120 policies designed to restrict entry at the southwest border, and he is currently detaining and expelling vast numbers of people—far more than his predecessor.

This action is consistent with his goals since his inauguration. The fact that Biden failed to get Congress to pass his immigration bill does not justify ignoring the laws that Congress has passed.

Setting an Unmeetable Standard

Biden’s order will take effect when Border Patrol arrests exceed 2,500 per day (which they do now) and will expire only when arrests fall below 1,500 per day for two consecutive weeks. From fiscal years 2019 to 2024, DHS has met this 1,500-per-day target in 11 months—all but once in fiscal year 2020. The Biden administration has never met this standard.

Even the Trump administration, despite the pandemic, a locked‐​down economy, and the most determined executive branch, failed to meet this standard in August, September, October, November, or December 2020. Achieving this goal would require a 60‐​percent decline in arrests.

This executive order might be the first time a politician has intentionally set an unmeetable goal. Imagine if President Obama had established a similar goal. It is extraordinarily unlikely that any set of enforcement‐​only policies will reduce Border Patrol arrests to below 1,500 per day for two weeks—particularly when the clock is running out on this administration.

Biden fears more immigrants trying to get in before the election, and that’s why he’s doing what he’s doing. However, setting and failing to achieve such a goal will not make him look more competent on border policy.

Why It Won’t Work

The executive order will not work. Biden has already tried a complete ban on asylum—an even more severe version under the health code law known as Title 42. Title 42 was applied most strictly to adults traveling without children from Mexico and northern Central America. During the time that it was enforced, Title 42 almost immediately led to more arrests of this demographic. This increase happened primarily because people who were expelled often attempted to re‐​cross the border, leading to more arrests.

It is still unclear whether Mexico will start taking people subject to this rule back. Early reports indicate that Mexico has not agreed to do this. If that’s the case, then this rule probably won’t lead to more arrests like under Title 42. Instead, it just won’t have any long‐​term effect on crossings because there are already not enough planes to fly everyone who is denied asylum back to their home countries. People have this conception that there are a bunch of deportation agents with planes waiting to be filled with people denied asylum, but the planes are already maxed out. Biden is currently deporting record numbers of people. This action doesn’t change these logistics.

Refusing to Make Legal Entry Possible

Biden is demanding that every asylum seeker apply for asylum at US ports of entry, but his order also requires that they use a cell phone app called CBP One to make an appointment three weeks in advance while they are still in Mexico. Moreover, the number of daily appointments is capped at 1,450. Therefore, Biden is effectively banning about 4,000 people per day from seeking asylum but is not opening up any additional legal ways for them to enter. Not a single additional person will enter legally because of this new rule. This will doom the entire effort, as people will continue to enter illegally.

It Will Make the Situation Worse

If the order is effective at denying people who cross illegally, it will cause more people to enter illegally and try to evade detection rather than turn themselves in for asylum. Evasions mean more trespassing on private property, more car chases with smugglers, and more confrontations between Border Patrol agents and migrants. We saw this exact result during Title 42. Since Title 42 expulsions ended in May 2023, the number of evasions or “known gotaways” recorded by Border Patrol has fallen 70 percent. This is an astounding border security success that Biden’s new action jeopardizes.

Conclusion

This action will only result in more deaths of migrants who think the only way to enter is by evading Border Patrol—by hiding in deserts, swimming the Rio Grande River, or slipping in surreptitiously into the back of tractor‐​trailers. In the big picture, President Biden should not be ignoring US laws. He should not be seeking to stop people from coming to the United States. Instead, he should be working to let them enter this country legally and orderly so they can contribute to it. America is a great country, and people want to join it. That’s a good thing. We should let them do so legally.