New York Post, January 30, 2024
President Biden all but threw up his hands on the border crisis Tuesday. “I’ve done all I can do,” he falsely claimed.
“Just give me the power,” he told reporters. “Give me the people” — “Border Patrol” and “judges” — “who can stop this and make it work right.”
Days before, the president said he supports a still-unseen Senate proposal, claiming it would give him “a new emergency authority to shut down the border when it becomes overwhelmed.”
But Biden doesn’t need any new legislation or power to secure the border — he just needs the will to do it.
Existing law not only allows the Department of Homeland Security to detain aliens apprehended at the border — it requires the department to do so.
The administration’s insistence on “catch and release” in lieu of that detention mandate is the border crisis’s biggest driver.
Border Patrol agents in December nabbed nearly 250,000 illegal migrants at the southern border and almost immediately cut more than 191,000 of them loose, allowing them to remain in the country — perhaps forever. Most of the rest will probably be released, too.
Foreign nationals make an economic choice when considering whether to pay smugglers thousands of dollars: If they believe they’ll recoup that down payment by working here, where wages are much higher, they’ll come.
Detained aliens can’t work, but the vast majority now know they won’t be detained.
The administration complains it lacks detention resources, but instead of asking Congress for more funding, the president has repeatedly sought fewer detention beds in his annual budget requests.
Granted, holding all those illegal immigrants would be expensive, but only initially. Once migrants realized they wouldn’t be released, the vast majority wouldn’t come.
Detention was the rule throughout the Obama and Trump administrations — when illegal entries were a fraction of what they are today.
Even if Congress refused to pony up detention cash, the president already has the power to send illegal migrants back across the border to await their asylum hearings.
Donald Trump used that authority when crafting “Remain in Mexico,” and Biden retains that power. He just won’t use it.
Then there’s Section 212(f) of the Immigration and Nationality Act, which gives the president authority to “suspend the entry of all aliens or any class of aliens.”
If that sounds familiar, it’s because it’s similar to but broader than Title 42 — it’s not limited to public health emergencies.
That section was the basis for travel restrictions Trump implemented on certain nationals of terrorist hotspots and countries hostile to the United States.
In 2018, the Supreme Court rejected advocates’ challenges to those restrictions, finding Section 212(f) “exudes deference to the President in every clause.”
Trump was later stymied by the liberal Ninth Circuit when he tried to use that power and an asylum exception to bar aliens who’d entered illegally from applying for asylum, but his administration ended before he could ask the justices to review that decision, and Biden refused to press the issue.
The Supreme Court plainly looks favorably on 212(f), and if Biden tried something similar, he’d likely receive a warmer response than his predecessor got from the Ninth Circuit. Not that he will.
Finally, the law allows DHS to expedite the removal of illegal migrants who don’t make asylum claims without first having to obtain a deportation order from a judge.
When Title 42 ended, DHS Secretary Alejandro Mayorkas promised that “the vast majority” of border aliens would face “expedited removal.”
In December, however, less than 9% of the nearly 250,000 illegal migrants agents apprehended at the southwest border were processed using that crucial tool.
Biden claims he needs additional powers to secure the border, but prior administrations showed that existing authorities are more than adequate.
The issue’s not power but will, and Congress can’t legislate that.