Biden’s latest immigration move shows his utter lack of options

News analysis: President Biden’s most recent actions to combat the humanitarian crisis at the US-Mexico border reflect decades of inaction that have left presidents with few to no good options when it comes to immigration policy in a toxic political environment

When President Joe Biden announced that the United States would begin expelling any migrants from Cuba, Haiti, Nicaragua and Venezuela who cross into the US illegally between ports of entry, he implicitly blamed the US Congress for contributing to the ongoing humanitarian crisis.

The influx has overwhelmed border towns in California, Texas and Arizona, and Mr Biden called out the refusal to update what he described as a “patchwork” of immigration laws which “simply doesn’t work as it should” and said the new programme he was ordering was just a stopgap.

“Until Congress passes ... a comprehensive immigration plan to fix the system completely, my administration is going to work to make things better at the border using the tools that we have available to us now,” Mr Biden said.

Mr Biden’s remarks — and the executive actions he rolled out last week — were not so different from another speech announcing executive actions on the same types of matters, delivered in November 2014 by then-president Barack Obama.

U.S. President Joe Biden walks with Mexican President Andres Manuel Lopez Obrador, at his arrival to the Felipe Angeles international airport in Zumpango, Mexico, Sunday, Jan. 8, 2023. (AP Photo/Fernando Llano) (Copyright 2023 The Associated Press. All rights reserved.)

In a prime-time address to the nation, Mr Obama described the US immigration system as “broken,” and said it had been in that state “for decades”.

Standing in the Cross Hall of the White House — the same place where he’d announced the death of Osama bin Laden — the 44th President decried the Republican-controlled Congress for not taking action on an immigration reform bill championed by a bipartisan group of eight senators, known as the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.

The so-called “Gang of Eight” bill had passed the Senate 68–32 with 14 GOP votes, but the House under then-Speaker John Boehner hadn’t lifted a finger to move the legislation through his chamber because of opposition from hard-line right-wingers who claimed a provision providing a pathway to citizenship for people then in the US illegally amounted to “amnesty”.

“I continue to believe that the best way to solve this problem is by working together to pass that kind of common sense law. But until that happens, there are actions I have the legal authority to take as President –- the same kinds of actions taken by Democratic and Republican presidents before me -– that will help make our immigration system more fair and more just,” he said.

Two presidents, two speeches, two sets of executive actions taken nearly a decade apart on an issue that remains one of the most intractable in American politics: What to do about people entering the US illegally along the US-Mexico border.

In both cases, Mr Biden and Mr Obama blamed Congress for the lack of action on an issue that has been a motivating one for voters in each of the two major US parties for years, despite consistent pressure from business groups and immigration activists to do something — anything — to clean up the “patchwork” Mr Biden described last week.

Why can’t Congress find the will to act?

Blame Ronald Reagan.

It was Reagan who signed the last major piece of immigration legislation to become law in the United States, the Immigration Reform and Control Act of 1986.

That law, sometimes known as Simpson–Mazzoli after the bill’s main sponsors (Republican Senator Alan Simpson of Wyoming and Democratic Representative Romano Mazzoli of Kentucky), levied penalties against businesses that hire anyone not legally authorised to work in the US while granting amnesty to anyone who’d entered the country illegally before 1982, upon showing a lack of a criminal record and demonstrating basic knowledge of US history.

At the time, supporters of Simpson-Mazzoli said the law’s ban on employing illegal immigrants would make it so difficult for anyone who crossed the border illegally to find work that it would discourage the practice, while Reagan himself hailed the legalisation provisions of the bill by saying they would “go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society”.

“Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans,” he said.

In a statement at the signing ceremony for the bill, he said his administration’s goal was to “establish a reasonable, fair, orderly, and secure system of immigration into this country and not to discriminate in any way against particular nations or people”.

But despite the 41st President’s hopes, the hard anti-immigrant right-wing of his party saw his signing of the bipartisan legislation as a betrayal that legitimised far too many nonwhite immigrants for their tastes. And any subsequent attempts to address the issue of how to deal with those seeking refuge on American soil have been derided as more “amnesty” and have been targeted by anti-immigration activists who have learned how to motivate Republican primary voters.

President Joe Biden walks along the U.S.-Mexico border in El Paso, Texas, Sunday, Jan. 8, 2023. (AP Photo/Andrew Harnik) (Copyright 2023 The Associated Press. All rights reserved)

Mr Biden is also being hamstrung by immigration advocates who, correctly, cite US law which states that anyone who reaches US soil, whether by crossing the US-Mexico border in between points of entry, flying to the US on an airplane and presenting oneself to a customs official, or traveling to any port in America by boat, has the right to request asylum in America.

Those rights are spelled out in a 1980 law known as the United States Refugee Act, which implements a 1967 treaty signed by the US and ratified by the Senate, the Protocol Relating to the Status of Refugees.

Under that treaty, the US cannot discriminate against refugees based on their nationality or return them to their countries of origin.

The treaty also obligates the US not to penalise anyone claiming asylum because they crossed into the country illegally.

This has been settled law in the United States for some time, but the unprecedented flood of migrants coming across the US-Mexico border — combined with years of Republican demagoguing about how the US following its’ own laws amounted to more “amnesty” or “catch and release” because asylum seekers have traditionally been permitted to remain free while their cases are under consideration — have made it both politically and logistically untenable for Mr Biden to order a strict implementation of black-letter law.

That’s why the new Biden administration programmme is being compared unfavourably to the Trump administration’s notorious “remain in Mexico” policy and has been condemned by members of the Congressional Hispanic Caucus as an expansion of former president Donald Trump’s use of Title 42 — a public health authority allowing the US to expel migrants without letting them claim asylum.

But Mr Biden, like Mr Obama before him, can’t do much more than he’s doing now. His attempts to allow US Citizen and Immigration Services asylum officers to more quickly process claims have been derailed by litigation from GOP-led state governments, and Republican control of the House makes it even less likely that Congress will ever take up the immigration legislation proposal he put forth within days of assuming the presidency.

And with Mr Trump’s anti-immigrant attitude still an animating force in the Republican Party as the 2024 election looms, there are simply no good options available to him.