Behind President Biden’s Immigration Executive Order

President Biden’s latest executive actions on immigration are an attempt to shrink a loophole that has allowed many people to enter the country without legal permission. That loophole is the asylum system.

In today’s newsletter, I’ll explain why experts consider the asylum system to be broken and why a long-term solution will almost certainly require a new law from Congress.

Not as intended

The modern idea of asylum stems from World War II. It is meant to protect people fleeing political oppression — Jews during the Holocaust, dissidents from the Soviet empire, Iranians after the revolution and, in recent years, Muslim Uyghurs, Afghans, South Sudanese and Ukrainians.

But asylum has expanded far beyond its original intent. Today, many migrants claim asylum even though they are not at risk of being persecuted. They instead want to move to the U.S. — understandably enough — because it is a richer, politically freer and less violent place than much of the world.

After migrants arrive at the U.S. border and request asylum, the federal government allows many to remain in the country while their cases are considered. The process can take years, partly because the system is overwhelmed and doesn’t employ enough border agents and immigration judges to decide cases quickly.

The situation has become self-reinforcing, giving more migrants reason to come to the U.S. As my colleague Miriam Jordan has explained:

It is not just because they believe they will be able to make it across the 2,000 mile southern frontier. They are also certain that once they make it to the United States they will be able to stay.

Forever.

And by and large, they are not wrong …

Most asylum claims are ultimately rejected. But even when that happens, years down the road, applicants are highly unlikely to be deported. With millions of people unlawfully in the country, U.S. deportation officers prioritize arresting and expelling people who have committed serious crimes and pose a threat to public safety.

Two decades ago, the typical way that people tried to enter the U.S. without legal permission was to evade border agents. Today, the typical way is to surrender to agents and request asylum.

It’s true that migrants typically face difficult circumstances at home, but that alone doesn’t explain the recent surge. The 1970s and ’80s offer a telling comparison: Global poverty was far higher then than now, and much of Latin America was convulsed by political violence. Yet the number of people who tried to cross the U.S. border was far lower than in recent years.

The recognition of the asylum loophole (along with other factors, like social media and affordable airfares) is a major reason.

As a result, the U.S. now has an immigration system that permits many more entrants than Congress intended — and many more than Americans support.

Polls show that most Americans consider illegal immigration to be a serious problem and favor tougher border security. Mayors and governors, who are dealing with the costs and turmoil associated with the surge, are also unhappy. As Noah Smith, who’s generally pro-immigration, recently wrote on Substack, “Americans like immigrants, but they strongly dislike the idea of giving up popular democratic control over immigration.”

Biden made a similar point at the White House yesterday, while surrounded by officials from border communities. “We must face a simple truth,” he said. “To protect America as a land that welcomes immigrants, we must first secure the border and secure it now.”

Biden’s executive actions are an effort to address both a substantive problem and a political threat to his re-election. The new policy, which started at midnight, prevents most people from claiming asylum if they enter the country without legal permission. They will instead have to remain in Mexico or return to their home country. The policy will remain in place unless daily migration falls well below its current level.

Legal experts are divided on whether judges will uphold Biden’s order. On the one hand, federal law calls for a generous initial approach to asylum claims. On the other hand, the Supreme Court recently ruled that immigration law “exudes deference to the president.”

Congress, of course, has the power to resolve this uncertainty. It could pass a law making clear who deserves an asylum hearing. Congress also has the power to hire more agents and judges, to reduce the system’s yearslong backlog.

Until recently, Biden and many other Democrats were uninterested in passing such a law unless it also expanded legal immigration. Democrats, sensing their political vulnerability, changed their approach late last year and agreed to a bipartisan border-security bill — only to watch Republicans kill it at the urging of Donald Trump. Trump preferred letting the border crisis fester to hurt Biden. Yesterday’s executive order was Biden’s response.

Whatever happens in the courts, the executive order may reduce migration simply by sending a signal that Biden has become more serious about border security. But the order falls well short of a lasting fix to the asylum loophole. Any true fix will have to be part of the immigration overhaul that politicians have talked about for decades and still have not passed.

For more

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