Biden’s Next Steps on Immigration

President Biden has come to recognize that the surge of undocumented immigration during his presidency is a threat to his re-election. He knows that most voters are unhappy about the increase. So are mayors and governors who have been left to deal with an expensive and often chaotic situation — such as in Denver, the subject of a recent Times story.

Biden and his advisers have already settled on one strategy to reduce his political vulnerability. They plan to remind voters that congressional Republicans this month blocked a bipartisan bill that would have strengthened border security. Even though many Republicans favored the bill’s policies, they defeated it at Donald Trump’s behest, largely to avoid solving a problem that has hurt Biden politically.

Given the blatantly partisan nature of the Republicans’ decision, it’s reasonable for Biden to emphasize it during his campaign. But I would be surprised if he could eliminate his vulnerability on immigration merely by criticizing Republican intransigence.

Why? Biden is the president, after all, and a president has significant authority to shape immigration policy even without new legislation.

Biden himself has been aggressive about using this authority — albeit to loosen immigration policy rather than tighten it. During his first months in office, he expanded asylum and paused deportations. He also expanded a policy known as parole, which the law says should be used “only on a case-by-case basis.” Last year, Biden used parole to admit more than 300,000 people.

These policies, combined with Biden’s welcoming rhetoric during the 2020 campaign, contributed to the migration surge. (John Judis went into more detail in a recent Times Opinion essay, as did David Ignatius in a Washington Post column.) The changes signaled to migrants that their chances of being able to enter and remain in the U.S. had risen.

Many migrants, as my colleague Miriam Jordan has written, are “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.”

At times, Biden administration officials have tried to downplay or even deny that their policies have contributed to the migration increase. Yet the officials’ recent actions suggest that they may not even believe their own denials.

The clearest sign is that the administration is now considering policies that would undo some of its initial loosening of immigration rules. One potential policy would restrict people’s ability to claim asylum if they first crossed into the U.S. illegally, rather than using the established asylum process. To justify the policy, Biden would likely cite the 1952 Immigration and Nationality Act, which allows the president to suspend immigration for anyone “detrimental to the interests of the United States.”

Whatever Biden decides, I suggest you keep in mind three pieces of context.

Presidential power

First, recent history suggests that a president’s immigration policies are significant enough to matter.

Migration surged after Biden took office — and it has fallen when he has put in place more modest policies to restrict undocumented immigration. One example: After the Biden administration persuaded Mexico to enforce its own immigration laws more forcefully in December, the number of people illegally crossing the southern border fell 50 percent in January.

Policy changes like these have both direct and indirect effects on migration. When migrants believe they are unlikely to be able to enter the U.S. and remain in the country, fewer attempt to do so.

Legal challenges

Second, if Biden acts to restrict migration, advocates for a more open immigration policy will probably challenge him in court. Many of these advocates believe that the U.S., as a rich country, has a moral obligation to admit migrants from poorer countries even if the migrants don’t have legal permission to enter.

The outcomes of these legal challenges would be uncertain, but there is reason to believe at least some of Biden’s actions would stand. The Supreme Court, when upholding some Trump immigration restrictions in 2018, ruled that the 1952 law “exudes deference to the president in every clause.”

Even if judges block some measures, the initial announcement of the policies could still slow migration by signaling to people that the Biden administration had become more serious about border security.

Republican claims

Third, you should still be skeptical of Republican claims that Biden can do whatever he wants about the border. Mike Johnson, the speaker of the House, has suggested as much on several occasions. In truth, while a president has significant flexibility to set immigration policy, that’s not the same as complete autonomy.

The policies passed by Congress matter, too. The bipartisan bill that Republicans defeated would have paid for, among other things, the hiring of border agents and immigration judges who could have reduced the enormous backlog of cases. These resources would have allowed the government to evaluate asylum applications more quickly — and reject applicants without good claims. Without the additional resources, more migrants will remain in the U.S. for months or years while their cases slowly wind through the courts.

The bottom line: Biden does have the power to reduce the very high migration levels of the past three years. And it’s true that he has been slow to do so. It’s also true that an enduring solution to the country’s immigration problems will require Congress to pass legislation.

Related: Last fall, “The Daily” went to Texas to explain how people who live near on the border think about immigration.

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