Hopes for a bipartisan compromise to address the crisis at the southern border were dashed last week. Republicans backed away from a deal at the urging of Donald Trump. Despite delivering major wins for Republicans, and despite an endorsement from the Wall Street Journal editorial board, almost all Senate Republicans voted against the proposal.
Trump had publicly bashed the compromise for weeks, urging Republican lawmakers to reject it. He said would take the blame. Here are his words:
“As the leader of our party, there is zero chance I will support this horrible, open borders betrayal of America. It’s not going to happen, and I’ll fight it all the way. . . I notice a lot of the senators, a lot of the senators are trying to say, respectfully, they’re blaming it on me. I said that’s OK, please blame it on me.”
President Biden strongly supported the bipartisan compromise. He has long maintained that legislation is necessary to fix the broken immigration system. He said he would immediately use the new authority to shut down the border:
“It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed,” Biden said in a statement. “And if given that authority, I would use it the day I sign the bill into law.”
Some Republicans expressed strong concerns that Trump would attempt to kill a border deal in order to help his presidential campaign. For instance, Republican Senator Mitt Romney said,
“The border is a very important issue for Donald Trump. And the fact that he would communicate to Republican senators and congresspeople that he doesn’t want us to solve the border problem—because he wants to blame Biden for it—is really appalling.”
Mitt Romney (R, Utah)
In the aftermath, Trump and Republicans say they rejected the bill because it doesn’t give them “everything needed,” and because legislation is unnecessary.
Trump and Republican members of Congress brush off concerns about putting a win in November ahead of solving a major problem. Instead, they offer two reasons for rejecting the compromise. First, it’s bad policy that didn’t meet the Republican criteria for solving the problem. And second, legislation is unnecessary because President Biden could use his executive authority to handle the border crisis. Trump maintains that he created the strongest and safest border in US history without legislation—and so could Biden.
“I do not think we should do a Border Deal, at all, unless we get EVERYTHING needed to shut down the INVASION of Millions & Millions of people, many from parts unknown, into our once great, but soon to be great again, Country!”
(Trump on Truth Social)
“We proudly handed the Biden administration the most secure border in history. All they had to do was keep this smooth-running system on autopilot.”
(Trump on March 21, 2021)
Republican House Speaker Mike Johnson asserts that Biden can and should use his executive powers to solve the problem. Trump agrees that if Biden wants to secure the border, he doesn’t need legislation. “I did it without a bill,” he said at a rally in Nevada.
Is legislation necessary to solve the border crisis, or can it be addressed through executive powers?
Trump and the Republicans killed the deal as terrible and unnecessary policy because the border was so perfectly secured during Trump’s term. They maintain Biden could also secure the border if he just exercised his executive powers. This includes reinstituting some of Trump’s policies and taking other executive actions.
Let’s put these assertions to the test. Let’s go back and review Trump’s record on securing the border. How successful was he, and what were the circumstances under which he achieved this success? Next we’ll examine how the conditions changed after Biden came into office, and we’ll evaluate the executive actions he took to secure the border. What problems were fixed through executive action and what problems remained? Is action by Congress necessary to address these remaining problems? And, finally, what are the consequences of Congress not acting?
Trump came out swinging, but his early record in securing the border was similar to Obama’s, until the huge surge of migrants in 2019.
Trump came into office with a host of policies aimed at deterring illegal immigration, including building a wall along the entire southern border, travel bans, and cancelling “temporary protected status” for refugees from Honduras, El Salvador, Haiti, and other countries.
But the most controversial of the early actions was “zero tolerance” and family separation. Under the policy, officially begun in May 2018, federal authorities separated children and infants from parents or guardians with whom they had entered the US. The adults were prosecuted and held in federal jails or deported, and the children were placed under the supervision of the US Department of Health and Human Services.
Lawsuits were filed immediately, and by June 26, 2018, a preliminary injunction was issued. It required immigration authorities to reunite most separated families within 30 days and to reunite children younger than 5 within two weeks. Thereafter the Trump Administration modified policies and there were further court battles. A Timeline on the Family Separation Policy recounts all of Trump’s actions and the resulting consequences.
Did all of these early and strong actions drastically bring down the number of immigrants attempting to enter the country illegally? Let’s explore.
The above graphic shows the number of migrants “apprehended” at the southwest border by the Border Patrol during the Obama and Trump Administrations. There are three fiscal years under Obama (FY14, 15, and 16), and three fiscal years under Trump (FY17, 18, and 19). For those not familiar, the federal fiscal year runs Oct 1 to Sept 30. Thus, for example FY 17 would be Oct 1, 2016 to Sept 30, 2017. Also, these “apprehensions” are now called “encounters”, and they are the key metric that Republicans use to condemn Biden for a crisis at the southern border.
Clearly, Trump’s totals for FY’s 17 & 18 are relatively in line with Obama’s totals for FY’s 14, 15, & 16. On the other hand, Trump’s total number of apprehensions in FY19 skyrocketed to 977,509, the highest number since 2000.
The numbers displayed above do not include apprehensions or encounters at the northern border or those processed by the Office of Field Operations. When we include these numbers, we see the jump in FY 2019 is even more dramatic–over 1.1 million.
What happened? Well, the short answer is “asylum.” Under US and international law, anyone can come to the US and ask for asylum. This is a process for legal entry into the country and there is no limit on the number of migrants who can apply. Under current law they can apply at a port of entry (affirmative) or apply after illegally crossing into the country and later being apprehended (defensive). Applicants are screened to determine whether they have a credible fear of persecution in their homeland. Their case then goes through the immigration court system to determine if they can stay. But this process often takes 4 or more years. In the meantime, asylum applicants are usually released into the U.S. to wait out their cases.
As Trump came into office and increased efforts to secure the border, those apprehended after crossing illegally were removed and deported. To avoid this fate, some migrants decided to enter the country via the asylum process. In FY 2019, there were 210,752 defensive applications for asylum, and 96,952 affirmative applications. The combined number of applications was a record total.
Trump took numerous executive actions to respond to the asylum surge, and most were challenged.
As the number of asylum seekers skyrocketed, the Trump Administration adopted a series of policies. The most prominent was known as “Remain in Mexico” (the formal title is “Migrant Protection Protocols”). Before this there was an attempt to turn away asylum applicants who suffered domestic violence or gang violence. But this was overturned by the courts. Similarly, Trump tried to deny the right to apply for asylum to anyone crossing outside a lawful port of entry. This too was overturned by the courts.
In late 2018, the Administration announced Migrant Protection Protocols. The policy essentially required migrants applying for asylum to remain in Mexico until their asylum court date. The rules were further tightened in July 2019 to make a person ineligible for asylum in the US unless they had previously applied for asylum in countries they had travelled through.
The policies were immediately challenged in court, and on July 24, 2019, a federal court issued an injunction blocking the new rules. However, in September of 2019, the US Supreme Court stayed the injunction, thus allowing the program to continue during litigation.
Over the next several years, the litigation continued, with back-and-forth rulings. Biden terminated the program upon entering office, but this action was challenged. Later, the Biden administration even reinstated the policies, with alterations, in December 2021. In February 2023, however, the Mexican government rejected any efforts to reinstate or participate in the Remain in Mexico policy.
Remain in Mexico has been criticized by many human rights organizations because it exposes migrants to attacks while they awaited processing. At its peak, some 57,000 migrants were forced to wait in Mexico. This means that most asylum applicants remained in the US, instead of being sent to Mexico.
Finally, in April of 2019 Trump directed officials to toughen rules for asylum seekers including a fee for their applications and barring those who entered the country illegally from working until their claims are approved. After the rules were adopted, the fee increases were successfully challenged in court as was the rule delaying work permits.
2020: The Covid-19 pandemic and Title 42 Expulsions
With the onset of the Covid-19 pandemic in early 2020, worldwide migration slowed down considerably as to asylum claims, and international migration generally. The Migration Data Portal estimates that migration inflows to OECD countries fell by more than 30% in 2020, the lowest since 2003. Simply put, it was hard to travel, and hard to enter foreign countries. Also, most economies were in recession, with high levels of unemployment. In the US, job prospects for migrants were minimal.
When we turn to “apprehensions” or “encounters” for FY 2020 (Oct 1, 2019 to Sept 30, 2020) it is therefore not surprising to see the number of encounters at the southwest border dropping to 400,651. Covid-19, economic conditions, and Trump’s strong actions all contributed to this number.
In March 2020, the Trump administration (CDC), citing Covid-19 concerns, issued a public health order allowing for the immediate expulsion of unauthorized border crossers and asylum seekers. The expulsion was executed through public health laws (“Title 42) rather than through immigration laws. Because it was an “expulsion” rather than a “deportation”, the migrants were not afforded due process procedures otherwise afforded to migrants. Those expelled were returned to their country of last transit (usually Mexico).
On the other hand, because the expulsion didn’t involve due process procedures, there were no penalties or prohibitions regarding reentry into the US. Many of those expelled simply attempted re-entry, often multiple times. The Border Patrol started keeping statistics on what it labeled “recidivism.”
Also, in June of 2020, Trump suspended several temporary work visa programs to help ensure that job openings were available to millions of unemployed Americans. Lawsuits were filed challenging the president’s executive authority.
In FY 2020, 197,043 migrants were expelled pursuant to Title 42, while another 203,608 were processed through existing immigration laws (Title 8).
As Trump’s term ended, the backlog in pending asylum cases reached 700,000, growing by more than 300,000 during the time he was president. As to the total backlog in the immigration courts, the number was 1.29 million, more than doubling during his term in office.
Did Trump create the most secure and safe border in US history?
Trump campaigned on a promise to end illegal immigration, and he accordingly applied a host of very aggressive executive actions. Many of these actions were eventually overturned by the courts, but were allowed to stay in place pending the outcome of litigation. For at least some of the time during Trump’s presidency, these actions operated to discourage and limit illegal immigration.
If we use the metric of “apprehensions” or “encounters” to assess border security, Trump did not have the most secure border in US history. FY’s 2017 and 2020 were certainly low in encounters, but not 2019. It was the highest in more than 10 years. While FY 2020 was low in encounters, it should be considered an anomaly because of the Covid-19 pandemic. Worldwide migration was down because of the pandemic and economic downturn. Also, if we look at “nationwide” encounters, as opposed to southwest border encounters, FY 2020 did not set a record low.
Other useful metrics can be found in the “Border Security Metrics Report” published annually by the Department of Homeland Security. The latest Report (2022) has “Estimated Detected Unlawful Entries Between Ports of Entry, FY 2006 to 2021.” Here we see that numbers for the Trump Administration are comparable to results for the Obama Administration. The numbers for the Trump Administration are better than the numbers for the Bush and Biden Administrations, however.
There is also the metric of “Southwest Border Got Aways and Estimated Total Successful Unlawful Entries between POEs, FY 2006 to 2021”. Here Trump does slightly better than Obama, and the numbers rise somewhat during the Biden Administration.
The Department of Homeland Security also annually publishes a “Yearbook of Immigration Statistics” that reports removals and returns (i.e., deportations). If we use this metric to assess border security, Trump again did not have the best immigration enforcement in history. Table 39 (page 105) reveals that President Obama removed and returned far more immigrants than President Trump. And President Biden removed, returned, and expelled far more immigrants than President Trump.
If we use of metric of drug seizures by weight (cocaine, heroin, fentanyl, etc.) to assess border safety and public safety Trump again does not have the best numbers. The Biden Administration has seized far more dangerous drugs, especially fentanyl.
It’s difficult to assess enforcement and removal because of Covid-19 and the Title 42 expulsion policy. Expulsions were certainly quick and efficient with respect to Title 42. However, the policy was established as an emergency action for health and safety purposes. It was never intended as a permanent tool.
Also, by the end of Trump’s term, many of the tools he used to control the border had been ruled illegal by the courts. These executive actions were no longer available to the next president.
At the end of Trump’s term, there were also record high backlogs in both asylum (700,000) and immigration (1.3 million) cases. These backlogs meant that some 1.3 million “illegal immigrants” remained in the US awaiting their court dates. Also, because of these backlogs, those apprehended subsequently were given court dates years into the future.
FY 2021—Biden’s first year—brings a big jump in enforcement encounters.
For FY 2021 (mostly in Biden’s first year), there were 1,659,206 enforcement encounters at the southwest border, with 1,040,220 being expelled pursuant to Title 42, and 618,986 being processed through Title 8. Not since 1986 and 2000 had the number of encounters or apprehensions reached this level.
Clearly, the number of encounters jumped considerably in FY 2021. Republicans use this metric as proof that “illegal aliens” were pouring across the border in record numbers. While there were far more migrants being encountered at the border, almost two-thirds (63%) of those encountered were immediately expelled. Also, because of a 27% recidivism rate for FY 2021, the total number of encounters was overstated.
By FY 2021, the US economy was no longer in recession and job growth was very robust. Job openings reached 10.1 million in July 2021, with many in the sectors of leisure and hospitality; transportation, warehousing, and utilities; and agriculture. Migrants around the world saw a booming US economy and a new president who was not Donald Trump.
Also during 2021 and 2022, worldwide migration rebounded with the end of the Covid-19 pandemic. Permanent migration to OECD countries climbed to 6.1 million in 2022, a 26% increase over 2021, and the highest level since at least 2005. Migrants were moving more freely all around the world. In terms of asylum applications, OECD countries such as Germany, France, Canada, and the UK saw record numbers. And most OECD countries returned to at least 2019 levels.
FY 2022—enforcement encounters reached record levels as the Covid-19 pandemic ends.
For FY 2022, encounters reached record levels. There was a total of 2,206,436 encounters at the southwest border, with 1,054,048 being expelled pursuant to Title 42 and 1,152,352 being processed through Title 8. Starting in February 2022, the US began taking in Ukrainian refugees, who are included as “encounters”. In 2022 and 2023, the US took in over 271,000 Ukrainians.
By March 2022, the Covid-19 pandemic was mostly in the rearview mirror and the CDC announced its intention to end Title 42 expulsions. This decision was immediately challenged in court, and litigation went back and forth for several months. The matter eventually got to the Supreme Court (Arizona v. Mayorkas, Dec 27, 2022), with a 5-4 decision allowing Title 42 to stay in place while the case was being decided.
Trump appointee Neil Gorsuch dissented, along with three other justices. What he said is noteworthy: “the current border crisis is not a COVID crisis.” The emergency was over, and with it the rationale for Title 42. He concluded with a warning: “rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
FY 2023—enforcement encounters again reached new records as Title 42 ends and the Biden Administration implements new strategies.
In January 5, 2023, the Biden Administration announced a series of border enforcement actions in preparation for the end of Title 42 on May 11, 2023. Here is a summary:
- Resources will be surged to the border to disrupt criminal smuggling networks and provide support to border communities.
- New policies will be implemented to increase the use of “expedited removal” of migrants to their country of origin, with a five-year ban on reentry.
- An online appointment portal was launched for noncitizens seeking to enter the country lawfully through a port of entry. Instead of coming directly to a port of entry and waiting, they would use a CBP One mobile application to schedule an appointment to present themselves for inspection and initiating a protection claim.
- A successful “parole process” pilot project was expanded beyond Venezuela to include Nicaragua, Haiti, and Cuba. Instead of trying to enter illegally, individuals from these countries could secure a sponsor and pass vetting and background checks from their home country. If they pass, they would be allowed to come to the US for two years, along with permission to work. No more than 30,000 people per month from these four countries could apply for this parole. Those not going through this process and attempting to enter the country illegally would be expelled to Mexico. Finally, data from the new program shows that it works. The vast majority of migrants from these countries are going through the program, and apprehensions at the border are down 97%.
Within a few weeks, Texas Attorney General Ken Paxton and 19 other GOP-led states challenged the new parole process rules in federal court. They claim the program is beyond Biden’s executive authority. The case is being heard by Judge Drew Tipton, a Trump appointee who has ruled against the Biden administration on previous immigration cases.
In another action to adjust for the end of Title 42, on May 11, 2023, the Biden Administration adopted a rule entitled, Circumvention of Lawful Pathways. Basically, a person seeking asylum who doesn’t pre-apply (CBP One app) or doesn’t attempt to seek asylum in a country through which they travelled, will be presumed ineligible for asylum in the US. There are some narrow exceptions, and the presumption can be rebutted. However, if there is no exception or rebuttal, the person will be subject to expedited removal, with at least a five-year ban on reentry.
Lawsuits against the Circumvention of Lawful Pathways rule were filed immediately. On June 23, 2023, the ACLU and other organizations sued the Biden Administration over its “sweeping asylum ban” also attacking the “expedited removal” provisions. In another case, on July 25, 2023, a federal judge blocked the new rule, calling it “arbitrary and capricious.” The case, filed in California, was appealed. On Aug. 3, 2023, the 9th Circuit Court of Appeals issued a stay, meaning the rule can continue to be applied pending the outcome of the litigation.
Then, in August of 2023, the Biden Administration was sued over its asylum appointment app, alleging CBP One did not work.
When we look back on FY 2023, it was a year of transition. Title 42 expulsions were terminated as an enforcement tool and the Biden Administration introduced a series of new actions to be implemented. Practically every step in this transition was legally contested, brining disruption and confusion. Under these conditions it is no so surprising that encounters again reached record highs. For FY 2023 there were a total of 2,475,669 encounters at the southwest border, with 564,380 being expelled pursuant to Title 42, and 1,911,289 being processed through Title 8.
Going forward, the Biden Administration no longer has the key enforcement tool of Title 42 expulsions. This means that the millions of migrants who choose to come to the border can’t be summarily sent back or prevented from seeking asylum. Instead, they must be processed by existing personnel using current resources. Because of limited detention facilities, many migrants must be released into the country with court dates far into the future. Gaining control of the border depends on whether the Biden Administration can encourage enough migrants to apply first from their countries, rather than travel to the border. As long as most migrants travel first, and then apply, the border is likely to remain in crisis.
What have we learned from this deep dive into the Trump and Biden Administrations’ efforts to secure the southern border and enforce immigration laws?
Immigration and border security are complex topics. Assessing border security based on the number of annual encounters is both misleading and inaccurate. Pandemics and economic conditions have an effect on encounters, and we should take them into account when assessing border security. The Covid-19 pandemic operated to reduce migration worldwide, and thus was a factor in reducing the number of border encounters in 2020. Similarly, as economies recovered worldwide–and the US economy boomed in 2022, 2023 and 2024–migration surged worldwide, and so did encounters at the border. The strong US economy clearly played a role in increasing the number of southwest border encounters since 2021.
Similarly, some 274,000 Ukrainian refugees increased the number of encounters in 2022 and 2023. This isn’t a border failure of President Biden. It’s also not Biden’s fault that the number of encounters were driven up because migrants expelled under Title 42 were legally free to attempt reentry with impunity. Migrants legally showing up at ports of entry to apply for asylum—a legal path to entry—are not something Biden can prohibit. Nor should the lines of asylees and refugees be equated with a failed border policy. Assessing the situation at the southwest border is far more complex than conflating the number of illegal aliens trying to sneak into the country with the number of encounters reported by CBP.
Federal laws adopted by Congress dictate immigration and asylum processes. Under these laws, there is nothing that prohibits migrants anywhere from leaving their countries and travelling to the US border. Under our asylum statutes, they can show up at our border and apply for asylum. They can even cross illegally and then apply for asylum after they are apprehended. Further, both immigration statutes and asylum statutes provide rights to hearings and due process procedures. These provisions are in statute, and a president cannot override them via an executive action.
When we look back at the efforts by Trump and Biden, it’s clear that both presidents aggressively used their executive powers to prevent a flood of migrants at the southern border. According to the Migration Policy Institute, Biden has taken 535 immigration executive actions as of January 17, 2024; and Trump took 472 immigration actions during his presidency.
Here is just a partial list of what Trump tried to do: separate families at the border, require asylum seekers to remain in Mexico until courts decided their claims, prohibit asylum to migrants who didn’t apply for asylum in a country they travelled through, deny asylum to migrants who didn’t apply at a port of entry, deny work permits to asylum seekers until their claims were adjudicated, and drastically increase fees for asylum applicants.
Every one of the executive actions listed above was challenged in court. Preliminary injunctions blocked many of these actions, but they were appealed. On appeal, some of the actions were allowed to continue pending the outcome of litigation. Eventually, after years, many of the actions were prohibited by the courts.
As to the Biden Administration, its approach is to strongly encourage immigrants and asylum seekers not to make the trip to the border. Rather, they can apply for asylum from their home countries. The Biden administration also created a “parole process” to allow migrants from certain countries to apply from their own countries to come to the US for a period of two years, with the ability to work. Since the Biden Administration couldn’t forbid migrants from deciding to travel to the US border first, it established a “presumption” that those who did so were ineligible for asylum and established a 5-year ban on reapplying. This includes individuals who didn’t apply for asylum in a country they were travelling through.
Again, as with Trump, every one of the Biden actions have been challenged in court. Preliminary injunctions have been issued, and they have been appealed. Some actions are being allowed to continue pending the outcome of litigation. It’s anyone’s guess whether the actions will be sustained in the long run.
In addition, the backlog of asylum and immigration court cases skyrocketed under both administrations. In November of 2023, the total case backlog reached 3 million. This backlog makes it impossible to expeditiously determine future asylum and immigration claims. Without additional resources from Congress, there was little either of the administrations could do to eliminate the backlog.
In summary, as long as federal statutes on asylum and immigration remain unchanged, there is no limit on the number of migrants who can travel to our borders. Also, without additional resources for enforcement and removing court backlogs millions of “encounters” will remain in the country while their claims are determined. The option of executive action to control the border has proven to be fraught with difficulty and uncertainty. On the other hand, if Congress were to specifically empower presidents to act and provide resources, this would pave the way for executive action and also limit or eliminate lawsuits.
What are key areas where Congress should act to authorize and empower presidents to gain control of the border and enforce immigration laws?
Given what we learned from our deep dive into actions of the Trump and Biden Administrations, here are some areas where explicit Congressional authorization could pave the way for more effective border control:
- Allow presidents to establish incentives for migrants to apply for asylum or other forms of legal entry into the country from their home countries. Congress could be specific about the incentives or leave more discretion to presidents.
- Also allow presidents to establish disincentives—but not prohibitions–for migrants who choose to come to the border first, or who attempt to enter the country illegally. Congress could be specific about the disincentives or leave more discretion to presidents.
- Change the process for determining asylum claims to be more expedited and tighten the rules for who qualifies for asylum. This could involve determinations being made by immigration officers, rather than immigration courts.
- Provide resources and direction to eliminate the backlog in asylum and immigration court claims. Establish a new timeframe for determination (e.g., six months).
- Provide resources and direction to eliminate “catch and release” and instead require detention or supervision of migrants encountered. Congress would probably need to be very specific about allowing detention outside of the country and what constitutes “supervision.”
- Provide presidents with emergency authority to close the border temporarily under certain specified conditions. If too many people show up at the border without pre-applying or intent upon crossing illegally, presidents could temporarily close the border to manage the situation.
In case you’re wondering, many of the solutions in the list above come directly from the compromise proposal rejected by Trump and the Republicans.
Is Congressional action necessary to solve the border crisis; and, if so, what are the consequences of not acting?
Our deep dive into the actions of the Trump and Biden Administrations inform us that executive action alone has been unpredictable, transitory, and only partially effective.
If we look to the future, Congressional action is undoubtedly necessary to solve the border crisis. If Trump returns to the White House, we can expect a host of executive actions that will be immediately challenged. We can expect an unpredictable series of preliminary injunctions and back and forth rulings. He will no longer have the tool of Title 42 expulsions. He will also have huge backlogs of asylum and immigrant court cases that enable current and future asylees and illegal immigrants to stay in the country. He also will not have the many specific authorizations that were included in the compromise legislation. Instead of having clear authority to close the border, tighten asylum requirements and procedures, and do the other things the bill authorized, his executive authority will be tested every step of the way. And Democrats certainly will not be receptive to legislation giving him the powers he rejected this month.
If Biden is reelected, he must fight an uphill fight to get his proposed executive actions through an extensive set of court challenges. He too will be without the tool of Title 42 expulsions. He too will have a huge backlog of asylum and immigration court cases. The prospects for solving the crisis at the border will be extremely limited.
Final thoughts
The crisis at the southern border cannot be solved without action by Congress. Legislation is in the best interests of the country and all Americans. A strong case can also be made that the compromise rejected by Trump and the Republicans is in the best interests of both Republicans and Democrats. Future presidents would be better equipped to ensure border security and safety.
In my opinion, former President Trump put winning in November ahead of the best interests of the country. And should he return to the White House, I predict he will blame everyone but himself for a southern border that will continue to be in crisis.
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