Critics see Biden evolution in new border order

On the campaign trail in 2020, President Biden was eager to distinguish himself from his opponent on immigration issues, promising to “restore our moral standing” while casting former President Trump’s policies as cruel and inhumane.

While border-crossing numbers have dipped, they still hover at historic highs. And with immigration a central issue in the 2024 contest, Biden has evolved in his approach, adopting hard-line policies that borrow elements from those used by his predecessor.

Biden’s latest executive order is one such example, restricting asylum protections for those who cross between ports of entry if average daily crossings exceed 2,500.

While using border metrics as a basis for asylum processing is new, the restrictions on the protections borrow from a policy first adopted by Trump. They’ve prompted advocates to pledge to sue, arguing the limitations are as illegal under Biden as they were when they were toppled under his predecessor.

Numerous immigrant rights groups invoked Trump in taking Biden to task over his latest policy.

“We’ve been here before. The policies announced today are near replicas of Trump-era asylum bans. Only now, they come from an administration that vowed to protect the right to seek protection and support immigrant communities,” the National Immigrant Justice Center said in a statement after the order was released.

While some have blasted the order as one of the most restrictive immigration policies rolled out by Biden, it’s one of several efforts aimed at getting a grip on border numbers that have shot up since the pandemic-era lows seen under Trump.

“President Biden took office on a promise to restore our asylum system. And while the administration has taken some positive measures, including significantly expanding access to asylum at ports of entry, it’s clear that this administration no longer believes in the universal right to seek asylum that they advocated for on taking office,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council.

“It’s very obvious that the administration views bringing down border encounters as more important than the abstract principle of keeping asylum alive. And I think that’s been something that many people have seen as very disappointing.”

Fresh off a campaign where Biden said he would offer a sharp contrast with Trump, his early days in the White House reflected those promises.

Biden, on his first day in office, lifted the Muslim ban. Shortly thereafter, his administration rescinded the Remain in Mexico policy requiring asylum-seekers to await their case on the other side of the border. And he established a family reunification task force to reconnect children who had been separated from their parents under Trump.

But he also hesitated to lift Title 42, which used the pandemic as a guise for denying asylum. Biden ultimately removed more people from the U.S. under the policy than Trump, rescinding it more than a year after taking office.

The Biden administration has described their own approach to immigration as a collection of carrots and sticks. 

Its immigration enforcement guidelines prioritize removal of those with serious criminal records rather than those who are undocumented but otherwise not deemed a threat. And it’s rolled out a program to offer temporary entrance to migrants from Cuba, Haiti, Venezuela and Nicaragua, if they can secure a U.S.-based sponsor. The administration has also invested heavily in Latin America in the hopes of stemming migratory flows.

But Biden officials have also borrowed from another Trump policy in seeking to limit asylum to those who first travel through other countries without asking for protection there, a policy known under Trump as the transit ban.

“Those are various tentacles of a significant rightward shift, which frankly I think should not be a surprise because Biden is himself a political creature of the 1980s and 1990s, when Democrats were quite aggressive in trying to outflank the Republican Party from the right on a host of issues,” said César Cuauhtémoc García Hernández, an immigration law professor at Ohio State University.

“These are people who have a political sensibility about migration that was different from the one that we find ourselves in now. But it’s hard to step away from your upbringing. I think the Joe Biden of 2020, who was so critical of the Trump administration, was much more of a deviation than the Joe Biden that we’ve seen in the last 12 months.”

Biden and White House officials have been adamant about drawing a distinction between the president’s latest policy move and Trump’s record and rhetoric on immigration.

“There are several differences between the actions that we are taking today and Trump-era policies. The Trump administration attacked almost every facet of the immigration system and did so in a shameful and inhumane way,” a senior administration official told reporters before listing off a series of Trump-era immigration policies.

“The action will not ban people based on their religion. It will not separate kids from their mothers. There are also narrow humanitarian exceptions to the bar on asylum, including for those facing an acute medical emergency or an imminent and extreme threat to life or safety. And the Trump administration’s actions did not include these exceptions.”

Lee Gelernt, an attorney with the American Civil Liberties Union who has pledged to sue to block Biden’s order, said he’s “not one of those people that wants to equate President Trump and President Biden.”

But he said while polling shows voters want action on the border, that doesn’t mean they prefer the draconian measures pushed by Trump.

“The fact that people are saying immigration is an important issue for them doesn’t mean they want to see one extreme or the other,” Gelernt said.

The order shows the tricky nature of immigration policy for Biden, who on Tuesday said that Americans’ patience is “wearing thin right now” and that “doing nothing is not an option.”

The order and accompanying rule are also full of complaints about congressional inaction.

Republicans united against bipartisan Senate legislation that would have included a measure similar to the one included in Biden’s order, with GOP support all but evaporating once Trump came out against the measure.

The senior administration official speaking with reporters cast it as Trump working to deny Biden a legislative victory.

But polling also shows voters favor Trump when it comes to determining who better handles the border.

A Marquette University survey of registered voters nationwide conducted last month found 52 percent of respondents said Trump did a better job on immigration and border security, compared to 25 percent who said Biden did a better job.

“Some of the interest groups and progressives on the left are upset by Biden’s actions. He should lean into their opposition to hammer in the point that he’s governing from the middle,” said Jim Kessler, co-founder of the left-leaning think tank Third Way. 

“Nothing scares Trump more than Biden getting the jump on him on border security,” he added.

“The killing of the border bill opened the door for Biden to get a new hearing on the border. The executive order is the next step. But it only works if Biden makes the border a priority day after day.”

But few on the left see it as a middle ground, and Rep. Joaquin Castro (D-Texas) warned the policy is sure to become a new baseline.

“Immigration and the border are perhaps the thorniest issues in American politics. Republicans use them to fearmonger; they use immigrants as political scarecrows to frighten voters. If this executive order goes into effect, it’s likely that every future president, especially Republicans, will use and expand it to choke off immigration and the right to asylum,” he said in a statement.

“The political pressure to keep the ban in effect will be too overwhelming.”