Is it possible for Biden to “close” the border at this point? Key Points to Understand Regarding the Discussion

The current debate surrounding President Biden’s response to the humanitarian crisis at the U.S.-Mexico border has intensified as he has promised to “shut down” the border if Congress passes an immigration compromise. This agreement, being negotiated with a small bipartisan group of senators, would grant the executive branch the power to partially close off asylum processing when illegal border crossings reach certain levels. However, completely shutting down the border would have severe economic consequences for both the U.S. and Mexico. Here are the facts about what President Biden can and cannot do legally at the border without congressional intervention.

What authority does President Biden currently have?

President Biden has the legal authority to reinstate the border policies implemented by former President Trump, as they were based on proclamations, regulations, and international agreements. These policies include agreements that allowed the U.S. to redirect asylum-seekers to third countries and the “Remain in Mexico” program, which required migrants to wait for their asylum hearings outside of the U.S. While federal law allows officials to return asylum-seekers to Mexico, it is not a requirement, as determined by the Supreme Court in 2022. Additionally, U.S. law gives the president, through the attorney general and secretary of homeland security, the power to place limits on asylum. President Biden has already exercised this power by enacting a regulation that deems migrants ineligible for asylum if they enter the U.S. without using legal immigration pathways or have passed through a third country without seeking asylum. However, the administration has faced challenges in implementing these restrictions due to a lack of resources.

What authority does President Biden not currently have?

President Biden does not currently have the legal authority to completely shut down the border. While he can reinstate Trump-era policies, he cannot implement new policies without congressional approval. This includes any measures that would completely close off the border, as it would have significant economic consequences for both the U.S. and Mexico. Additionally, the president does not have the authority to unilaterally change immigration laws or create new ones. Any significant changes to immigration policy would require congressional action.  

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