The president is using his pen to address the immigration crisis. His executive order would trigger border closures if the number migrants exceeds a certain threshold over a given week. In today’s political environment, presidents routinely act unilaterally to get what they want. But the most striking thing about this action is what it will not do.
For months the president’s political advisors and donors have asked him to go it alone on immigration. They see a liability for President Biden, who the public rates lower than former President Trump for his handling of the issue. The question is: How can the president shore up this gap in perceptions?
Executive action is the answer. As David Axelrod, former senior advisor to President Obama, recently put it in conversation with Bill Kristol, Biden “has to look like he’s seizing control of the situation” — even if the order is legally dubious. Sen. Chris Murphy (D-Conn.), who negotiated the bipartisan bill that included the power Biden will attempt to reproduce via executive order, was more blunt: if Biden signed such an order, courts would invalidate it “within a matter of weeks.”
Even if the order temporarily stands, the flow of migrants in the oppressively hot summer months may never hit the closure threshold. And even if the border does close for a short time, this won’t address unlawful crossings, or the migrants already in the U.S. The Biden administration knows this, which is why they teed up another Senate vote on the bipartisan immigration bill. Executive action will show the president acting, after Donald Trump obstructed real, bipartisan progress. In short, the purpose of the president going alone on immigration is political, whether it fixes the problem is almost beside the point.
American presidents have vast powers given to them by the Constitution and decades of deference by Congress. But even these powers fall well short of what’s needed to provide real solutions to America’s policy problems. It’s a paradox of our system of government: American presidents have more power than any other human, but not nearly enough to satisfy all our demands.
So, when presidents need to, they fake it. They create feckless commissions, sign orders that will be a coin-flip in court, and under-invest in follow-through or implementation. What matters more is the signing ceremony, the positive press and the appearance that the president is in charge.
The Biden administration is not the first to show off this way. The Trump administration formed its own worthless commissions, made announcements that went nowhere, and its border wall is the ultimate symbolic policy — politically important, but largely ineffective. The Obama administration promised to “demilitarize” police, but when the final policy was implemented, it effected less than 5 percent of the police departments involved in the military lending program. President Clinton created a new system of “American Heritage” rivers, which gave the rivers no new legal protections. But the program did feature campaign-style events for Vice President Al Gore, who would soon run for president. Even President Teddy Roosevelt gave empty orders: He asked the military to require physical fitness tests. They ignored him.
But Biden’s move also illustrates the dangers of giving presidents these “unilateral” opportunities. We want our presidents to rise to the occasion, to put effective government and the national interests above their own political fortunes. But they are not angels, they’re politicians. They use the tools at their disposal to serve their momentary political interests. This has real consequences. It ties up scarce time and resources, while acclimating the American public to rule by executive order.
Right now, the Biden administration is using the levers of government to up the odds of winning in November. You can’t blame them. Our political system begs them to. In politics, there are real, substantive accomplishments, and there is the public’s perception of accomplishment. They aren’t the same thing. As long as the gap remains, we can expect presidents to keep putting on a show.
Kenneth Lowande is an associate professor of political science at the University of Michigan.