Biden Reverses Course, Contemplates Executive Action to Address Border Crisis

FAIR Take | February 2024

Over three years into the worst border crisis in American history, the President is finally considering action. At first, the President denied there even was a border crisis. Then he blamed Congress for not giving him the power to act. Now, President Biden is rumored to be considering the use of longstanding authority laid out in the Immigration and Nationality Act (INA).

The authority being considered by the President is Section 212(f) of the INA. That statute states:

“Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

INA 212(f) has been used by multiple Presidents in both parties dating back to 1981—including by President Biden. During his first week in office in January of 2021, President Biden used Section 212(f) to bar the entrance of migrants who posed a risk of spreading COVID-19. President Obama also used the authority numerous times, including to suspend the entry of migrants who participate in serious human rights violations. The statute received renewed attention by the media in March 2017, when President Trump invoked the authority to restrict the entry of nationals from six countries presenting a heightened risk of terrorism so the federal government had time to review screening and vetting standards.

Despite using 212(f) himself, President Biden has denied having any authority to address the border crisis without congressional action. In remarks last month, the President said “I’ve done all I can do. Just give me the power. I’ve asked from the very day I got into office.”

Now, the Administration is reportedly considering implementing several measures based on Section 212(f) authority. These actions may include barring aliens from seeking asylum if they are apprehended between ports of entry (which could be similar to the asylum regulation already issued by Homeland Security Secretary Alejandro Mayorkas) or the implementation of a policy to trigger a border shutdown if illegal crossings reach a certain number.

Reports that the President could invoke Section 212(f) to take executive action sparked reaction from both Republican and Democrat members of Congress. In a statement Thursday, Speaker Mike Johnson (R-La.) referred to the move as an election year ploy and said, “Last year, I sent a letter to the President to demand he take immediate executive action. He has thus far ignored my demands, and the pleas from big city mayors, border state governors, and the American people…The President created this catastrophe and, until now, has refused to use his executive power to fix it.”

In contrast, Democrats have argued any action based on Section 212(f) would be too restrictive. Congresswoman Pramila Jayapal (D-Wash.) blasted the notion that President Biden would use Section 212(f) to restrict asylum as tantamount to a “Trump-like” policy, and said doing so would be an “extremely disappointing mistake.” “Cruel enforcement-only policies have been tried for 30 years and simply do not work.”

Beyond the executive action under consideration, the Biden Administration has numerous other tools that can be used to secure the border—many of which President Biden abandoned after taking office. As FAIR has noted, those measures include reinstating the Migrant Protection Protocols to require asylum seekers to remain in Mexico; ceasing all unlawful parole programs; and detaining those encountered rather than releasing them.

Whether President Biden will implement any meaningful measures like these remains to be seen. Some political observers suggest the President could simply sign an executive order mimicking the policies he already has put in place to give the appearance that he is taking action, when in reality he is just attempting to fool the American people. Others have posited that the rumors of executive action are simply that—rumors.

Stay tuned to FAIR for more information on this story.