Mar 24, 2024 - Politics & Policy

Scoop: Biden's border nuclear option is still on the table

President Joe Biden gives a speech at Intel Ocotillo Campus on March 20, 2024 in Chandler, Arizona

Photo: Rebecca Noble/Getty Images

President Biden is still considering harsh executive actions at the border before November's election, Axios has learned.

Why it matters: Legal, logistical and political risks are constantly being weighed. Any new surge in border numbers could add urgency for what one administration official described as the nuclear option.

  • "The bullet's in the chamber," said another source familiar with the planning.
  • Border numbers fell in January and only ticked up slightly in February, but crossings historically rise in the spring and summer, which could add pressure on the administration to take more drastic measures. That move, however, would upset some Democrats.

Zoom in: The orders being considered would ban people from entering the U.S. if they illegally crossed the border and make it harder for people to pass the first interview in the asylum-seeking process, as has been reported.

What they're saying: "No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected," a White House spokesperson told Axios.

  • "We continue to call on Speaker [Mike] Johnson and House Republicans to pass the bipartisan deal to secure the border."

Catch up quick: The White House had considered announcing new executive actions in the run-up to or during the State of the Union address this month, as Axios reported, but ultimately opted against it.

  • But the move is not dead, and internal conversations continue about expanding the president's authority on the border, according to multiple sources.
  • The failure of a bipartisan border deal provided Democrats a rare chance to blame Republicans for the chaos at the border — a political opportunity Biden seized during his address to Congress, slamming Republicans and former President Trump.
  • Since urging congressional action "was a principal point of the State of the Union, to then turn around and immediately announce an executive order would seem to me in tension with that," Sen. Chris Coons (D-Del.) told Axios this month.

Between the lines: Using a section of U.S. code called 212f to crack down on people illegally crossing the border would be legally risky — courts intervened in a similar effort under the Trump administration.

  • It's one reason why the White House has urged Congress to pass a bipartisan border deal that would provide similar powers but with more solid legal footing.
  • An executive order would still require resources for the Department of Homeland Security to enforce.
  • "The president has limited authority. He can't invent new resources. He can't change asylum law," Sen. Chris Murphy (D-Conn.), who was a key negotiator for the border deal, told Axios.
Go deeper