Apr 15, 2024 - Politics & Policy

Inside Biden's delay on going "nuclear" at the border

Illustration of a hand in a suit with pen drawing a line on the ground in front of small person walking

Illustration: Sarah Grillo/Axios

President Biden's road to a dramatic executive order to stem illegal border crossings — now expected within weeks — has dragged out for months as he prepares for legal challenges, political backlash and enforcement shortages.

Why it matters: With Republicans making the border a top 2024 issue, Biden has been trying to find the right language to impose a crackdown without getting instantly shut down by courts — or facing an open revolt by his progressive base.

  • Those challenges — along with concerns that an executive order without the money to implement it wouldn't be effective — have led Biden and his top aides to be extra deliberative before taking action.
  • If he pulls the trigger, Biden would rely on the same section of the federal code, known as 212(f), that former President Trump used against immigration — including his so-called Muslim ban and an ultimately unsuccessful ban on asylum seekers.
  • The stakes are high for what one Biden administration official called the "nuclear option" on the border.

Driving the news: Despite political and practical risks, Biden is expected to take executive action on the border in the coming weeks, as Axios has reported.

  • Last week, the White House notified senior Capitol Hill aides that they will soon be briefing them on the president's border plans, according to a person familiar with the matter.
  • Leading up to a potentially explosive announcement, Biden is publicly expressing ambivalence about using Section 212(f) — which allows the president to limit foreigners from entering the country if they're deemed detrimental to U.S. interests while also hinting that he's heading in that direction.
  • "Some are suggesting that I should just go ahead and try it," Biden said in a recent interview with Univision. "And if I get shut down by the court, I get shut down by the court."

What we're hearing: Surviving a legal challenge is one obstacle for the White House. But there also are practical and political risks — particularly in an election year when Republicans in Congress have tried to stiff Biden on border funding, and progressives have been grumbling about his dedication to Israel in the Gaza war.

  • To actually reinforce the border, Biden — like Trump — needs something only Congress can provide: money to hire more U.S. Customs and Border Protection agents and other reinforcements.
  • "We cannot give ourselves resources," Homeland Security Secretary Alejandro Mayorkas — who's been impeached by the GOP-led House over the border crisis — told reporters earlier this month.

Zoom out: The White House had hoped that Congress would pass a bipartisan border deal to give the administration more authority and resources to block migrants and asylum seekers from illegally crossing the border when numbers spike.

  • The deal failed after Trump pushed Republicans to reject the bill so he could campaign on the festering border situation.
  • It left the White House with the more risky, last-resort option: Section 212(f).

What to watch: The timing of a sweeping border action will matter, especially in an election year. Officials are watching border trends.

  • Illegal border crossings dropped in January and have been relatively stable since.
  • The average number of daily crossings is almost half what it was during December's surge, according to recent internal government statistics obtained by Axios.
  • But crossings typically jump during the spring and summer, which could put more pressure on Biden to take action to lower numbers and avoid a new string of GOP attacks ahead of the election.

What they're saying: "Congress should do its job and it hasn't," a White House spokesperson told Axios. "No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected."

  • Mayorkas told reporters that the administration weighs actions to solve the border problem "every day." He also outlined potential drawbacks.
  • "It's unclear whether they would survive litigation," he said.

Flashback: Trump's executive actions on immigration faced constant litigation. When he leveraged 212(f) to block illegal border crossings, a federal judge ultimately blocked the Department of Homeland Security from enforcing it.

The bottom line: It's already against the law for asylum seekers and other migrants to cross the southwest border anywhere other than the designated, legal entry points.

  • Biden already has used his executive power to automatically reject asylum seekers who cross the border illegally and do not first seek protections in a country they passed through.
  • But harsh executive policies do little to fix the U.S. immigration system's outdated infrastructure, cash-needy federal agencies and overwhelmed border officials trying to keep up with tens of thousands of people trying to cross into the U.S. every week.
  • So even if Biden does go "nuclear" at the border, it's likely to be a short-term fix.
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