Report: President to Take (Yet Another) Executive Action on Border

The ‘Lankford Limit’, the inconsistencies of Biden’s immigration policies, and the administration’s ‘frenemies on the other side’

By Andrew R. Arthur on June 3, 2024

Back in February, the media was atwitter with news the president was going to use his executive powers to finally restore some semblance of operational security to the Southwest border. Since then — crickets, punctuated only by fresh and breathless reports that such action was imminent every few weeks. Now, however, it appears that border action will be forthcoming, along the lines of limitations on the number of aliens allowed to enter illegally per day in the now twice-defeated “Senate border bill”. Prepare to be underwhelmed and hoodwinked on the enforcement part — and watch out for an executive amnesty that will likely accompany any such proposal.

“Presidential Power to Secure the Border”. On March 7, I appeared before the House Judiciary Committee’s Subcommittee on Immigration Integrity, Security, and Enforcement to talk about the authorities Congress has given the president to secure the border in the Immigration and Nationality Act (INA).

As I explained, Congress has given the executive branch nearly all the authorities it needs to protect the homeland by restricting the illegal entry of aliens into the United States. That the U.S.-Mexico line has become a chaotic disaster over the past three years is solely due to President Biden’s refusal to use those authorities, and also to his DHS secretary’s blithe disregard for the migrant detention mandates Congress has imposed in the INA.

As I noted — at length — in that testimony, not only the Trump administration but also the Obama-Biden administration before it, had effectively used those powers to bring illegal immigration under control. In the 13-year period between FY 2007 and FY 2019, Border Patrol agents apprehended, on average, 1,354 illegal entrants per day — 1,354 too many, but nothing like what’s happened under the current administration.

“Biden Mulling Plan That Could Restrict Asylum Claims at the Border”. On February 21, the New York Times ran an article headlined “Biden Mulling Plan That Could Restrict Asylum Claims at the Border”, and it began:

President Biden is considering executive action that could prevent people who cross illegally into the United States from claiming asylum, several people with knowledge of the proposal said Wednesday. The move would suspend longtime guarantees that give anyone who steps onto U.S. soil the right to ask for safe haven.

The order would put into effect a key policy in a bipartisan bill that Republicans thwarted earlier this month, even though it had some of the most significant border security restrictions Congress has contemplated in years.

The bill would have essentially shut down the border to new entrants if more than an average of 5,000 migrants per day tried to cross unlawfully in the course of a week, or more than 8,500 tried to cross in a given day.

As I’ve explained in my analyses of the Senate border bill, that proposal would have given the president “emergency” authority to expel illegal migrants once CBP Southwest border encounters reached 4,000 per day, and mandated such expulsions when encounters reached 8,500 per day or there was a seven-day average of 5,000 encounters.

That bill was the product of months-long negotiations between three senators: Jim Lankford (R-Okla.), Krysten Sinema (I-Ariz.), and Chris Murphy (D-Conn.). Lankford was the biggest proponent of both the bill and that daily limit, which led some conservatives to deem that daily restriction the “Lankford limit”.

As the Center’s most recent one-pager on this proposal made clear, however: “This ‘5,000 per-day limit ... is riddled with loopholes and sunsets that undermine any effectiveness the concept may have had.”

Specifically, it included carve-outs for aliens seeking to make persecution and torture claims and would have left the Southwest border ports of entry open to a minimum of 1,400 inadmissible aliens per day — even when the border between the ports was technically closed to illegal entrants.

Poor and/or non-existent vetting of such migrant protection claims by Biden’s DHS is the biggest current impediment to border enforcement, and thus those persecution and torture exceptions would likely swallow the Lankford limit.

And the 1,400-per-day carve-out for inadmissible aliens at the border ports would not only exceed the 13-year average daily limit for illegal entrants I mentioned above (1,354 apprehensions on average a day between FY 2007 and FY 2019), but it would also double-down on current (and facially illegal) Biden policies enabling 1,450 aliens each day to preschedule their illegal entries using the CBP One app (which I have deemed the “CBP One app interview scheme”).

East Bay Sanctuary Covenant. In response to that February Times article, I published a post analyzing the rather vague proposal.

My headline wasn’t that different from the one that appeared in the paper (“Biden Reportedly Considering Executive Action on Border Crisis”), but the subheader was likely more salient: “Is there a sue-and-settle scheme being hatched by ‘the administration and its frenemies on the other side’?”

The quote in the subheader is from a dissent authored by Ninth Circuit Judge Lawrence VanDyke in East Bay Sanctuary Covenant v. Biden; understanding that case is key to identifying where the latest Biden proposal is almost definitely headed.

Back in May 2023, when Title 42 was set to expire, the Biden administration published a different rule intended to — wait for it — "restrict asylum claims at the border”. That rule was formally captioned “Circumvention of Lawful Pathways”, but it was helpfully abbreviated by my colleague George Fishman as the “CLAP rule”.

The CBP One app interview scheme was a key part of the CLAP rule, which also would have imposed a rebuttable presumption that illegal entrants who failed to seek asylum on the way here aren’t eligible for protection.

That “rebuttable presumption” isn’t absolute, however. There are three exceptions: one for aliens who scheduled port appointments using the CBP one app interview scheme, a second for those who applied unsuccessfully for asylum elsewhere, and a third for those who tried and failed to use the app.

Even then, migrants can rebut that presumption by showing they have an acute medical emergency, “faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture, or murder”, or were victims of trafficking.

“Politically Fraught Games” and “Rulemaking by Collective Acquiescence”. Notwithstanding those limitations, a group of plaintiffs who had sued to block Trump-era border asylum restrictions filed an amended complaint to also challenge the CLAP rule, in the aforementioned East Bay Sanctuary Covenant v. Biden.

In July 2023, the district-court judge in East Bay Sanctuary vacated and remanded the CLAP rule, staying his order for two weeks to allow the Biden administration to seek further review from the Ninth Circuit. As my colleague Elizbeth Jacobs reported in August, a divided Ninth Circuit panel granted DOJ’s request to stay the judge’s order, while setting the matter for an expedited hearing.

Biden’s DOJ vigorously defended the CLAP rule before both the district and circuit courts. At least until February, when the parties in East Bay filed a joint motion with DOJ to hold the government’s appeal in abeyance pending settlement negotiations in that case, which a three-judge Ninth Circuit panel — on a divided two to one vote — granted on February 21.

The lone dissenter was Judge VanDyke, and he complained:

Taking the government at its word about the pressing need for this crucial rule to remain in effect and be enforced, our court granted a stay of the district court’s decision enjoining the government’s rule. We heard oral argument and are now poised to render our decision. Then suddenly, out of the blue, the parties come to us hand-in-hand, jointly asking us to hold off making a decision while they “engage[] in discussions regarding the Rule’s implementation and whether a settlement could eliminate the need for further litigation.” For months, the rule was so important that “any interruption” in its implementation, even for a short period of time, would incapacitate the executive’s border response. This panel made decisions based on those representations. Now, the government implies the rule isn’t so important after all. Indeed, the government is now “engaged in discussions” that could result in the rule going away. What?

The administration’s abrupt about-face makes no sense as a legal matter. Either it previously lied to this court by exaggerating the threat posed by vacating the rule, or it is now hiding the real reason it wants to hold this case in abeyance. ... At the very least it looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year. [Emphasis added.]

Channeling Judge VanDyke’s concerns about political interference in this case, five states, led by Kansas, filed a Motion to Intervene in East Bay Sanctuary in early March, in which they argued:

It is now clear that [Biden’s DOJ and DHS] will not provide adequate representation of the States’ interest in maintaining the Rule. The federal government vigorously defended the [CLAP rule] — until it mysteriously stopped. It seeks to settle with plaintiffs who are fighting the presumption, yet it continues to litigate against the states. It is “impossible to know the government’s exact motives for its current course of action because it hasn’t even attempted to tell us,” ... . Accordingly, it is also impossible for the States to rely on Defendants to support their interests. [Emphasis added; citations omitted.]

On May 22, the Ninth Circuit denied the states’ motion, in an order that included yet another dissent from Judge VanDyke alleging there may be political shenanigans afoot:

The government’s highly unusual behavior not only explains why intervention is justified; it makes one wonder if the parties are engaging in “rulemaking-by-collective-acquiescence” or some other collusive strategy designed to lessen the political impact of this litigation during an election year.

“Biden Executive Action on the Border Could Come as Early as Tuesday”. Which brings me to a June 2 Politico article captioned “Biden executive action on the border could come as early as Tuesday”. It indicates the latest Biden border plan will largely follow the parameters described by the Times in February, but take special note of two key paragraphs:

The order Biden is slated to announce would use section 212(f) of the Immigration and Nationality Act to dramatically limit migrants’ ability to seek asylum at the southern border once encounters reach a new threshold. Administration officials have discussed an average of 4,000 daily border crossings over the course of a week as the metric.

. . .

But it’s unclear how successful the proposed executive order will be, operationally or politically. Using 212(f), which Trump employed repeatedly to shape the immigration system, is set to face steep blowback from the left. And like Trump, the Biden administration may also face legal challenges. [Emphasis added.]

Briefly, section 212(f) of the INA provides, in pertinent part, that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The Supreme Court held in 2018 that section 212(f) “exudes deference to the President in every clause”. And yet when the Trump administration later attempted to use that authority to bar asylum claims by aliens who entered illegally, it was blocked by the Ninth Circuit.

The case? East Bay Sanctuary Covenant v. Trump, an earlier iteration of the case in which the states attempted unsuccessfully to intervene, and in which settlement negotiations between the administration and migrant advocates are ongoing.

In my congressional testimony, I detailed the clear legal errors in that decision, but don’t trust me: Judge VanDyke explained in his February dissent, “If this case gets before the Supreme Court, the safe bet is that it would overrule” the earlier precedents in East Bay (which he termed “erroneous”) expressly limiting the president’s 212(f) authority at the border.

The problem is that with Kansas and the other states prevented from intervening in East Bay, and the Biden administration still negotiating with the plaintiffs in that case, there’s no way such Supreme Court review will be occurring anytime soon.

My Prognostication. The latest Biden proposal will likely follow the outline the Times described in February — a 4,000 to 5,000 apprehension per-day Lankford limit and continued access to the ports by inadmissible aliens. Don’t be surprised if there’s also some new “benefit” to aliens unlawfully here, like a “parole in place” and work authorization for “sympathetic” groups of aliens to appease the president’s progressive base.

Here’s another thing that shouldn’t surprise you: Whatever asylum restrictions the president proposes will be immediately challenged by the plaintiffs in East Bay, an ongoing case in which at least one federal judge suggests the administration may already be playing political games with its migrant-advocate “frenemies”.