If President Biden thinks allowing up to 8,500 people into the country in a single day is “the toughest border enforcement in history,” we can only imagine what he considers an open border.
But the question soon arose – why was this “border bill” even necessary? Couldn’t the President close the border by Executive Action?
Not according to Joe Biden. “Well, I suggested that,’ Biden told Univision’s Enrique Acevedo when asked about a potential executive order on immigration and border security. ‘We’re examining whether or not I have that power,’ he added…’There’s no guarantee that I have that power all by myself without legislation. And some have suggested I should just go ahead and try it. And if I get shut down by the court, I get shut down by the court. But we’re trying to work that, work through that right now,’ he said of the current state of potential executive action.”
Apparently, someone must have informed President Biden that he continues to have the power to issue an Executive Order regarding the border crisis. Or did he really forget that he issued an Executive Order on the day of his inauguration that eliminated the border control measures former President Donald Trump had put in place – by Executive Order?
On June 4, 2024 Biden issued “A Proclamation on Securing the Border,” in which the President admitted that “encounter levels [between Border Patrol and illegal immigrants] increased toward the end of 2023, and December 2023 saw the highest level of encounters between ports of entry in history, as increasing numbers of people migrated through the Western Hemisphere.”
Who does President Biden blame for this crisis? “The current situation is…the direct result of the Congress’s failure to update an immigration and asylum system that is simply broken – and not equipped to meet current needs…[t]he Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem.”.
Just how will this new Executive Order address this problem? Under Section 1, “[t]he entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation.” However, under Section 3, the suspension does not apply to a vast group of exceptions, including “any unaccompanied child…any noncitizen who is determined to be a victim of a severe form of trafficking in persons… noncitizens who arrive in the United States at a southwest land border port of entry pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States…any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter…any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.”
Those are some pretty broad categories, aren’t they? Notice also this provision of the Proclamation, which is similar to the bill which failed to pass in Congress: “The Secretary of Homeland Security shall monitor the number of daily encounters and…the suspension and limitation on entry pursuant to section 1 of this proclamation shall apply…immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more…unaccompanied children…shall not be included in calculating the number of encounters.”
In other words, unaccompanied minors, and a variety of other exceptions are exempt from the ban on entry into the United States by illegal aliens; and the Secretary of Homeland Security (that’s Alejandro “the border is secure” Mayorkas) decides he can close the border after 7 days in a row of an average of 2,500 illegal entries (that’s at least 17,500 people, excluding the categories listed above, per week).
Notice further that Secretary Mayorkas has the discretion to act after making a “finding of fact.” Suppose the Secretary doesn’t make such a finding? Suppose everyone who enters during a particular week are either unaccompanied children, or people who fit into one or the other of the broad categories of exemptions?
In essence, then, this Executive Order is an end run around Congress – yet another effort to use the emergency powers of the Executive branch of government to seize power and allow illegal immigrants admission into our country, while claiming to restrict their entry.
Of course, there were the usual complaints from immigration activists. For instance, “Amy Fischer, the Director of Refugee and Migrant Rights at Amnesty International USA, said in a statement that Biden’s actions ‘set a dangerous international precedent…It’s deeply disappointing to see President Biden so hellbent on dismantling human rights for people seeking asylum and implementing policies that are plainly illegal under international and refugee law,’ Fischer said.” Further, the American Civil Liberties Union announced their intention to file a lawsuit against implementation of the order. “’The Biden administration just announced an executive order that will severely restrict people’s legal right to seek asylum, putting tens of thousands of lives at risk,’ the organization posted on the social platform X. ‘This action takes the same approach as the Trump administration’s asylum ban. We will be challenging this order in court,’ it added.”
Seems there is something for both sides to hate about this Executive action. But what all Americans should be concerned about is the cavalier approach the Biden Administration takes to the separation of powers mandated by the US Constitution. Rather than work with Congress to reform immigration law, and enforce border security, the President has fallen back on his oldest habit – using the border crisis to give more power and discretion to his Homeland Security Secretary.
Biden also makes use of another old habit – he lies to us about what he is really do.
Judge John Wilson (ret.) served on the bench in NYC
Photos: Pixabay