Biden’s border order: impractical policy, pragmatic politics

IT IS INDICATIVE of America’s putrid politics that President Joe Biden’s plan to crack down on migration at the southern border is meant not necessarily to succeed, but to convince voters that he is trying to succeed. On June 4th Mr Biden revealed an executive order that will theoretically allow him to deny asylum to migrants who cross illegally when their numbers are high.

The administration has been mulling executive action since Senate Republicans, at Donald Trump’s behest, torpedoed a bipartisan bill they had helped to craft. The order borrows ideas from that bill. It would bar from receiving asylum all those who cross between ports of entry when migrant encounters at the southern border exceed an average of 2,500 a day. That threshold would be easily met. Asylum-seekers would be returned to Mexico or deported until arrests fall below 1,500 a day. The order reflects a conservative turn for Mr Biden, who suggested openness to migrants when he took office in 2021.

Too bad it won’t work. There are three reasons why. First, it will certainly be tied up in the courts. The order’s power is derived from an obscure statute that gives presidents broad authority to suspend the entry of people who “would be detrimental to the interests of the United States”. But applying that notion to asylum contravenes both international and domestic laws, which hold that asylum-seekers can lodge a claim no matter how they enter the country. The courts blocked Mr Trump from barring asylum for those who crossed the border illegally. A similar, extant Biden-administration rule is in legal limbo.

Second, it is unclear how the order can be enforced. Some screenings the government will not halt, such as determining whether migrants would be subject to persecution or torture if returned, though the order does raise the standard to be considered for such protections. Turning migrants back into Mexico depends on Mexican co-operation. And though Mr Biden has increased deportations, they are a logistical nightmare. Not every country accepts deportees. Venezuelans have made up 12% of migrant encounters at the southern border this fiscal year. Yet Venezuela stopped allowing deportation flights when relations with America soured.

Last, the surge in migrant arrests under Title 42, a public-health measure brought in during the pandemic that allowed America to quickly return migrants to Mexico, should serve as a warning. Migrants just tried to cross again—and again. Rather than reducing Border Patrol’s workload, the executive order may inflate it. To try to prevent this, the order threatens migrants who are removed with a five-year ban on re-entry and possible criminal prosecution if they try to cross again.

So why issue an order at all? Mr Biden may hope that tough talk deters migrants from making the journey. That could happen. But he is also thinking about the election. The bipartisan border bill failed because Republicans wanted to be able to campaign on “Biden’s border chaos”, rather than fix the problem. That left the president with few options. Just 32% of registered voters polled in May by YouGov and The Economist approve of Mr Biden’s handling of immigration. He is trailing Mr Trump by nearly five points in Arizona and six in Nevada, swing states where the border feels more visceral. If voters deem the order an earnest attempt to solve the issue, then Mr Biden is betting that impractical policy will at least make good politics.■