Shutting southern border denies asylum to those who deserve it and sets the scene for court challenge.
Migrants wait in line adjacent to the border fence under the watch of the Texas National Guard to enter into El Paso, Texas, May 10, 2023.
Yet Biden’s order is both morally and legally troubling. If implemented, it would deny asylum to people who legally deserve it — those who would be persecuted in their countries of origin. And the order is almost certainly unlawful under the standards imposed by the courts on Trump’s similar orders. If federal judges are consistent, they will block Biden’s order from going into effect.
Trump’s executive actions on the border relied on section 212 of the Immigration and Nationality Act, which says the president can suspend entry of any class of aliens if he determines their entry would be “detrimental to the interests of the United States.” To oversimplify a bit, the federal courts rejected Trump’s claim that this provision let him shut down the border to asylum applicants.
It’s hard to see why Biden’s exceptions should make a difference legally: If Trump lacks the authority to deem all asylum-seekers’ entry detrimental to U.S. interests, Biden shouldn’t have the authority to deem all asylum-seekers detrimental except for kids and people forced into prostitution.
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