Biden’s ‘border order’ is the new version of Trump’s wall, but will it work?

The US president’s order might earn him a few points in the pre-election poll ratings – but whether it will reduce the number of would-be migrants or reduce Trump’s attraction to voters as the border defence guy, however, remain questions, writes Mary Dejevsky

If the ban casts doubt on Biden’s credentials as a Democrat, he could lose as many votes as he gains (AP)

As we are seeing so graphically in the UK, election campaigns can make for strange policy bedfellows – and the United States has suddenly thrown up a classic example. Five months out from the actual election, Joe Biden, a Democrat president with a generally liberal record on social issues, has announced a measure that comes remarkably close to a landmark policy of Donald Trump’s back in 2016.

Remember Trump’s blustering promise, repeated ad infinitum at his campaign rallies, to build a wall to prevent would-be migrants crossing into the US from Mexico? Well, Biden has announced what could be seen as the next worst thing, without the need for expensive building works.

An Executive Order issued this week says that anyone – and when the United States says anyone, that is generally what it means – who crosses the border illegally may be deported before any asylum claim is heard. There is a daily quota for crossings under an existing scheme, but once that quota is reached, that’s it.

Effectively, the US has unilaterally abolished the international right to claim asylum. Deportations reportedly began within hours of the order coming into effect, although no official figures have been released. The US political response meanwhile was predictably divided, with civil liberties groups preparing a court challenge and Republicans, Trump included, dismissing the measure as nothing like enough.

The argument will doubtless go on through the US election campaign, but Biden’s resort to what was described by one US commentator as the most restrictive border policy by a Democratic president in recent history says a lot about the United States and what it can and cannot do. It shows, first, that European democracies are not the only countries where what is termed irregular migration has become a central election issue.

It is, for instance, expected to increase the far-right vote in many countries at this week’s EU elections, changing the composition of the EU parliament as a result. The United States may traditionally have accepted high levels of migration – it prides itself, after all, on being a nation of immigrants – but this tolerance goes only so far and coexists with a hard edge where the law is concerned.

Trump’s wall proposal reflected growing concern about migration on the part of southern border states. But record arrivals in the past two years mean there are now 3 million asylum applications pending, with the delays deemed to be encouraging others to come. This had become a big liability for Biden in the election campaign, which explains why he decided to act.

How he acted, however, points up a huge distinction between the US and most European countries. Imagine any European leader not only saying what Biden said – “If an individual chooses not to use our legal pathways, if they choose to come without permission and against the law, they’ll be restricted from receiving asylum and staying in the United States” – but being able to enforce it, within hours.

The executive order gives a US president swingeing power in certain domains. Such orders can be challenged through the courts – Trump’s attempt to bar entry to the US for people from predominantly Muslim countries was overturned by the courts – but otherwise, the order stands. But a US president is also less constrained by virtue of simply being American.

The powers of the UK and most other European governments on migration, as on other rights issues, are restricted by the European Court of Human Rights – to which they have all signed up. This influences the decisions of courts nationally, and constitutes a final instance of appeal. Many a government has expressed frustration at what sometimes seem outdated or overgenerous guarantees on individual rights – rights, what is more, that may seem to conflict with the interests of existing citizens.

Such is the sway of the ECHR, as enshrining what are seen as essentially European values, that challenges are few, and despite threats, no UK government has actually left. The US does not have this particular problem.

On the rights of refugees and asylum seekers, however, it should have some qualms, as it is signed up to the post Second World War Geneva Conventions, which specifically uphold those rights. And it is hard to escape the impression that the US is in fact far less of a team player on the international legal front than its regular high-flown statements about individual rights and freedoms might suggest.

The use of rendition and detention without trial at Guantanamo Bay represented conspicuous violations of practically every international protection. Even if that is seen as an exception, the US is an outlier in many other ways. It is not, for instance, a member of the International Criminal Court, it has signed, but never ratified, the 1996 Comprehensive nuclear test ban treaty; it has breathed hot and cold on international climate change agreements, and has never joined the UN convention on the Law of the Sea, which could paradoxically strengthen its case for its patrols in the Black, Red, and South China Seas.

A US president may enjoy exceptional powers, and the US may regard itself as above international legal norms, but these advantages – as compared to European governments – do not mean that Biden’s order will necessarily have the effect he hopes.

Even if a legal challenge fails, as it well might, migration levels reflect not just the appeal of the destination, but the situation in the countries the migrants are leaving, which is now not only or even mainly Mexico, but less stable countries further south and west.

The US is trying to negotiate agreements to return irregular migrants not just to Mexico, but direct to other countries, but this will take time, and could be complicated by a new president in Mexico. Donald Trump’s failure also stands as a warning. His wall plans were frustrated in part by states’ rights issues, but primarily by the reluctance of Congress to vote the money.

Biden’s order might earn him a few points in the pre-election poll ratings; whether it will reduce the number of would-be migrants or reduce Trump’s attraction to voters as the border defence guy, however, remain questions.

And there is also a risk: if the ban on asylum claims casts doubt on Biden’s credentials as a Democrat, he could lose as many votes as he gains.