CNN Op-Ed Makes Some Good Points About Biden’s Immigration Policies

But it ends up offering an absurd recommendation that will just make things worse

By Andrew R. Arthur on October 11, 2022

CNN recently ran an opinion piece on its website captioned “What the Biden administration is getting wrong on immigration”, by Tim Kane  The author makes several good points (starting with the headline), but his ultimate recommendation is absurd, and will just make the problems he identified worse. It’s still worth the read, but you can skip the end.

(The author is president of a new immigration-expansionist group called American Lyceum, not Tim Kaine, Democratic senator from Virginia and Hillary Clinton’s running mate in 2016.)

Kane frames his piece by asking two questions. The first: “How many times has the Biden White House had an unresolved conflict between idealism and pragmatism on the issue of immigration?” The second: “How many times has it hesitated to take action, opting instead for political messaging?” His “sad” answer to both: “every time”.

With due respect, Kane’s first answer is wrong because the Biden administration’s “idealism” — unmoored from law and logic — is what’s driving the humanitarian and national security disaster at the Southwest border and what has left immigration enforcement in the interior a shambles.

Idealism Driving Border Chaos . . . Border Patrol is on track to apprehend around 2.1 million illegal entrants at the Southwest border in FY 2022 (far and away a new record), overwhelming agents to the point they are unable to catch nearly 600,000 others who have successfully evaded arrest and made in into the interior due to the deleterious policies emanating from the White House.

Those policies and the reasons for them are clear to anyone willing to wade through administration talking points, congressional testimony, and news transcripts, but here’s a brief recap.

In a break from every prior administration’s border policy, the Biden administration refuses to deter aliens from entering the United States illegally. It has implemented that “no-deterrence” policy by opting not to impose consequences (detention and prosecution) on illegal migrants — even those whom Congress says must be detained or should be prosecuted.

Moreover, not only has it abandoned a third possible consequence for illegal entry — returning non-Mexican migrants across the border to await their removal hearings, as embodied in the Trump-era Migrant Protection Protocols (“MPP”, better known as “Remain in Mexico”) — but Biden has been fighting (thus far successfully) in federal court since April 2021 to avoid having to reimpose MPP.

“Idealism” of a sort is the reason why the administration has placed the Southwest border on this path to anarchy.

Specifically, Biden and his advisors have decided to provide every foreign national who can make it to U.S. soil illegally access to an already overwhelmed immigration court system — despite the fact that Congress gave DHS authority to quickly remove nearly all of them without obtaining an order from an immigration judge.

Why? Because the White House has decided to treat every illegal migrant as an “asylum seeker”, regardless of the strength of their claims (or whether they have a claim at all) and despite the fact that doing so will make it impossible for DHS to ever remove most of them.

And, as further incentive to encourage foreign nationals to enter illegally, the administration has secured $150 million in funding for a program originally intended for homeless vets to feed, house, and transport those migrants while they are here, as well as tens of millions in legal defense funds to help them fight removal.

. . . and Interior Non-Enforcement. Similarly, it would not have been possible to hamstring ICE officers to the extent that removals of aliens plummeted 70 percent in Biden’s first fiscal year in office without some serious meddling from the White House. Note that not only did deportations of “otherwise law-abiding illegal aliens” drop, removals of hard-core criminals — with convictions for homicide, sexual assault, kidnapping, etc. — did, too.

Why did the administration decide to curb enforcement actions against criminal aliens in the United States — in a manner that reviewing courts have deemed illegal, by the way? Pure idealism: Biden has decided that immigration enforcement is “inequitable” and requires his administration’s wise and heavy thumb on the scale to make it “fair”.

Playing Politics with Public Safety.That said, Kane is correct when he states, “too often this White House plays politics”. As he explains:

Early on, last year, [the administration] engaged in a rhetorical word game whether a crisis even existed. It blocked Cubans fleeing communism while allowing in just over 1 million individuals who crossed the border illegally.

It blamed everything on the Trump administration, while pretending Barack Obama’s executive actions hadn’t led to an explosion of families and minors crossing the border. Worst of all, the Biden administration reflexively points to “root causes” of poverty and violence, even though those conditions have been dramatically improving for a decade across Central America.

Not only are those points true, but also useful in informing the public debate. Many can’t remember what happened last month, let alone under the Obama administration, and few are familiar with the economic situation in Central American countries. That’s why many of the immigration tropes the administration peddles are accepted as truth by a vast swathe of the media.

Those political games inflict a real-world cost on the nation as a whole because, as Kane notes, “open border chaos increases human trafficking and drug trafficking”.

Drug and human traffickers are at play not only at the border, but through their criminal networks, in cities and towns across the republic. Due to the covert nature of such activities, we will likely never know how much carnage they are inflicting, except at a micro level.

But in much the same way that Republican governors have brought the border to northern enclaves by transporting released migrants to them, criminal cartels and syndicates, and their lowlife confederates, are bringing the border to street corners, playgrounds, apartment complexes, and cheap motels nationwide. The problem is difficult to quantify but is adversely affecting many nationwide.

“Temporary Refugees”. After making these excellent points, however, Kane’s analysis devolves into poorly reasoned nonsense that gets a little hard to track.

He begins by making the truthful point that legal immigrants have helped to build the United States into the superpower that it is. From there, however, he proceeds to this:

Biden should take advantage of his moment in history to boldly reform American refugee policy. He could, at the stroke of a pen, redefine how many refugees are allowed into the United States by taking advantage of the distinction our laws make between those granted temporary protection and those awarded permanent residency.

I have read through Kane’s op-ed several times, but I am still not entirely sure what he is proposing.

It appears, however, that he wants the president to ignore the admission restrictions in the Immigration and Nationality Act (INA), and bring an unlimited number of Chinese, Venezuelan, Ukrainian, and other nationals suffering under dictatorship and conflict to the United States, but only for an indeterminate period, after which they will return home. Let’s unpack that.

Kane appears to think that the Constitution assigns power to Congress only to make decisions strictly related to “naturalization”, while freeing the executive branch under its foreign policy power to admit any alien it wants into the United States — provided they aren’t allowed to stay forever.

To be fair, Article I, section 8, clause 4 of the U.S. Constitution does only refer to Congress’ authority “To establish an uniform Rule of Naturalization”, and Kane might have a point if he were writing on a blank slate. The slate’s not clean, however, and Kane misses the fact that the Supreme Court has held:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added.]

Furthermore, while Congress’ authority over immigration has been found to flow from its naturalization power, the legislative branch’s foreign commerce power (Article 1, section 8, clause 3 of the U.S. Constitution) has been recognized as a separate source of such authority. Simply put, the executive has some power over immigration, but Congress calls the shots.

Consequently, Biden cannot simply allow any foreign national he chooses to the enter this country unless Congress gives him power to do so.

While I could end it there, I must point out that Kane’s analysis is premised on a faulty factual proposition, too. He contends: “Anyone who worries that untold millions of temporary refugees would overwhelm the nation should appreciate that some 200 million foreigners visited America annually as business, education and tourism travelers before Covid-19.” Say what?

I’m not sure where Kane gets the 200 million figure, as clicking on the key link in that article takes you to a DHS report showing there were just fewer than 81.6 million nonimmigrant admissions with I-94s in FY 2019, not including an “untold” number of Mexican and Canadian tourists and business visitors.

DHS’s visa overstay report for FY 2019, on the other hand, reveals that there were almost 59 million “in-scope” nonimmigrant admissions that fiscal year, with an overstay rate of more than 676,000, or 1.21 percent. Thus, even when nonimmigrants are vetted before arriving, or are coming from “visa waiver” countries, hundreds of thousands still stay annually.

Even if those statistics supported Kane’s claims, however, it does little to advance his point. There’s a big difference between a foreign student coming to a four-year college or a tourist family traveling to check out Disney World and a “temporary refugee”. The government of China isn’t likely to change anytime soon, but even if it did, how many nationals of that country temporarily admitted under Kane’s scheme would leave after buying houses and having children? Not many.

The president’s pen is no substitute for Congress’ language in the INA. While Kane makes some valuable observations about the effects of the Biden administration’s policies on U.S. immigration, his ultimate recommendations will make things worse, not better. The first part of his CNN op-ed — detailing the administration’s failures — is worth the read, but respectfully, you can skip the rest.