Biden's Executive Action on Border Has 'Exceptions Broad Enough to Drive a Truck Through'
President Joe Biden announced an Executive Order related to people seeking asylum at the southern border on Tuesday during a White House ceremony.
Of course, the actual plan had a lot less teeth than what was previewed, and Biden's announcement was mostly rhetoric with a bit of policy mixed in.
While announcing his plan, Biden blamed Republicans in Congress and Donald Trump for the inaction at the border and acted as if he's been trying mightily to secure it for his whole presidency.
Here's how the executive action was previewed by the New York Times:
The order would allow border officials to prevent migrants from claiming asylum and rapidly turn them away once border crossings exceed a certain threshold. Government officials earlier this year discussed allowing Mr. Biden to shut down the border if there were an average of 5,000 border crossings in a week, or 8,500 in a single day, but those involved in the negotiations cautioned that the threshold was not finalized and could change. White House officials have been focused on a trigger that would empower Mr. Biden to shut down the border.
But Fox News' Bill Melugin, who's spent the majority of the last three years covering the U.S./Mexico border (from the border, not from a newsroom) and embedded with Border Patrol agents says there are massive loopholes in Biden's order and that, "In no way can Biden's executive order be described as 'shutting down' the border." Melugin wrote:
In no way can Biden’s executive order be described as “shutting down” the border.
It bans asylum to some illegal crossers, with some exceptions.
It does *not* stop or slow the up to 1,500 migrants per day released into the U.S. via CBP One app at ports of entry, and does not stop or slow the up to 30,000 migrants per month flying directly into the U.S. and being released into the country via Biden’s controversial mass parole program for Cubans, Haitians, Nicaraguans, and Venezuelans.
Unaccompanied children/minors are exempt from the order - which will lead to concerns about child trafficking, and migrants can still claim fear in an attempt to avoid deportation.
Also, asylum has already been banned for most migrants who cross illegally since the end of Title 42 last year - and that hasn’t stopped them from coming. Highest numbers in recorded history end of 2023.
The order may speed up removals to countries we can deport easily to, (Mexico, northern triangle countries, etc), but there has been no explanation as to how the administration will be able to begin mass removals of migrants coming from another hemisphere with governments that don’t cooperate with the U.S.
It didn't take the House Homeland Security Committee long to pick up on that theme:
All in all, this parody Kamala Harris explainer (from our own Bob Hoge's beautiful bride) made a lot more sense than Biden's announcement.
Here's the full proclamation, from the White House website:
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (8 U.S.C. 1182(f) and 1185(a)) and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the entry into the United States of persons described in section 1 of this proclamation under circumstances described in section 2 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:
Section 1. Suspension and Limitation on Entry. The entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation. This suspension and limitation on entry shall be effective at 12:01 a.m. eastern daylight time on June 5, 2024. The suspension and limitation directed in this proclamation shall be discontinued pursuant to subsection 2(a) of this proclamation, subject to subsection 2(b) of this proclamation.
Sec. 2. Applicability of Suspension and Limitation on Entry. (a) The Secretary of Homeland Security shall monitor the number of daily encounters and, subject to subsection (b) of this section, the suspension and limitation on entry pursuant to section 1 of this proclamation shall be discontinued at 12:01 a.m. eastern time on the date that is 14 calendar days after the Secretary makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters, not including encounters described in subsection 4(a)(iii) of this proclamation.
(b) Notwithstanding a factual determination made under subsection (a) of this section, the suspension and limitation on entry pursuant to section 1 of this proclamation shall apply at 12:01 a.m. eastern time on the calendar day immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more, not including encounters described in subsection 4(a)(iii) of this proclamation, until such suspension and limitation on entry is discontinued pursuant to subsection (a) of this section.
(c) For purposes of subsection (a) and subsection (b) of this section, unaccompanied children (as defined in section 279(g)(2) of title 6, United States Code) from non-contiguous countries shall not be included in calculating the number of encounters.
Sec. 3. Scope and Implementation of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply across the southern border to noncitizens, other than those described in subsection (b) of this section, during such times that the suspension and limitation on entry is in effect.
(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:
(i) any noncitizen national of the United States;
(ii) any lawful permanent resident of the United States;
(iii) any unaccompanied child as defined in section 279(g)(2) of title 6, United States Code;
(iv) any noncitizen who is determined to be a victim of a severe form of trafficking in persons, as defined in section 7102(16) of title 22, United States Code;
(v) any noncitizen who has a valid visa or other lawful permission to seek entry or admission into the United States, or presents at a port of entry pursuant to a pre-scheduled time and place, including:
(A) members of the United States Armed Forces and associated personnel, United States Government employees or contractors on orders abroad, or their accompanying family members who are on their orders or are members of their household;
(B) noncitizens who hold a valid visa or who have all necessary documents required for admission consistent with the requirements of section 1182(a)(7) of title 8, United States Code, upon arrival at a port of entry;
(C) noncitizens traveling pursuant to the visa waiver program as described in section 1187 of title 8, United States Code; and
(D) noncitizens who arrive in the United States at a southwest land border port of entry pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States;
(vi) any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter; and
(vii) any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.
(c) An exception under subsection (b) of this section from the suspension and limitation on entry pursuant to section 1 of this proclamation does not affect a noncitizen’s inadmissibility under the Immigration and Nationality Act for a reason other than the applicability of this proclamation.
(d) The Secretary of Homeland Security and the Attorney General are authorized to issue any instructions, orders, or regulations as may be necessary to implement this proclamation, including the determination of the exceptions in subsection (b) of this section, and shall promptly consider issuing any instructions, orders, or regulations as may be necessary to address the circumstances at the southern border, including any additional limitations and conditions on asylum eligibility that they determine are warranted, subject to any exceptions that they determine are warranted.
(e) Nothing in this proclamation shall limit the statutory processes afforded to unaccompanied children upon entering the United States under section 279 of title 6, United States Code, and section 1232 of title 8, United States Code.
Sec. 4. Definitions. (a) The term “encounter” refers to a noncitizen who:
(i) is physically apprehended by CBP immigration officers within 100 miles of the United States southwest land border during the 14-day period immediately after entry between ports of entry;
(ii) is physically apprehended by DHS personnel at the southern coastal borders during the 14-day period immediately after entry between ports of entry; or
(iii) is determined to be inadmissible at a southwest land border port of entry.
(b) The term “southern coastal borders” means all maritime borders in Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime borders proximate to the southwest land border, the Gulf of Mexico, and the southern Pacific coast in California; and all maritime borders of the United States Virgin Islands and Puerto Rico.
(c) The term “southwest land border” means the entirety of the United States land border with Mexico.
(d) The term “southern border” means the southwest land border and the southern coastal borders.
Sec. 5. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States. Accordingly, if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby.
Sec. 6. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
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