The upcoming presidential election campaign is already causing Joe Biden’s administration to tighten its immigration policies. The White House is using provisions of federal immigration law that former President Donald Trump repeatedly used to unilaterally conduct sweeping raids on the southern border.
Biden has ruled that migrants caught crossing the border illegally will be quickly deported or sent back to Mexico. According to the U.S. Department of Homeland Security, there are exceptions for unaccompanied children, people facing serious medical or security threats, and victims of human trafficking. But President Joe Biden is making a mistake if he hopes to improve his electoral chances. Such an order is unlikely to be legal or effective.
If the president declares that people crossing the southwest border are not eligible for asylum, a court will block it. Donald Trump tried a similar approach by executive order. In November 2018, Judge Jon S. Tigar of the U.S. District Court in San Francisco issued a nationwide order prohibiting the Trump administration from preventing people who crossed the southwest border from applying for asylum.
“No matter the scope of the president’s powers, he cannot rewrite immigration laws,” Judge Tigar said at the time. In February 2020, the 9th Circuit Court of Appeals also declared Donald Trump’s asylum rule illegal.
Republican lawmakers have pressured the Biden administration to reinstate the “Remain in Mexico” program implemented by Trump, which required asylum seekers to live in Mexico (often in dangerous conditions) until their case was heard. The United States cannot implement this policy without Mexico’s consent, and the Mexican government has said it opposes allowing asylum seekers to stay in its country for months. There is also no evidence that this policy has reduced illegal entry.
The Trump administration launched the “Remain in Mexico” program in January 2019. According to an analysis by the National Foundation for American Policy (NFAP), Border Patrol arrests along the southwest border – an indicator of illegal entry – increased by 162 percent between December 2018 and May 2019. For six consecutive months, Border Patrol arrests at the border were higher than before the policy began.
In contrast, opening legal pathways has reduced illegal entry – and quickly. An NFAP report found that after the Biden administration implemented humanitarian programs, border checkpoints for Cubans, Haitians and Nicaraguans dropped by 92 percent, compared to an 18 percent increase for nationals of countries not part of the program.
Biden officials limited the program to 30,000 nationals per month from each country. The individuals must have sponsors, must fly to the United States and can obtain work authorization.
After a court rejected an attempt to stop the program, the Biden administration should have reason to expand the model. It could do so in two ways. First, the administration could raise the 30,000-person monthly cap for Venezuelans. Venezuela’s economic and human rights policies have created more refugees than Russia’s invasion of Ukraine.
Second, the administration could expand the program to include more countries. If it included the six countries from which Border Patrol has most frequently apprehended people in recent months, and if illegal entry declined at a similar rate to the other countries, illegal immigration at the southwest border would drop to low levels.
America needs workers. A recent study by economist Madeline Zavodny of the University of North Florida concluded that the decline in foreign-born working-age people that began with Donald Trump’s immigration policies in 2017 (and was exacerbated by Corona) likely wiped out a significant portion of GDP growth in 2022.
Zavodny found that real GDP growth in the U.S. was estimated to be up to 1.3 percentage points lower in 2022. In other words, the growth rate was only 1.9 percent, but could have been as high as 3.2 percent if the foreign-born working-age population had continued to grow at the rate it did in the first half of the 2010s.
Congress should create temporary work visas for year-round jobs in sectors such as hospitality and construction to complement current seasonal visas that primarily cover jobs in agriculture and summer resorts.
The loudest voices in the room are usually not the ones with the best solutions. In immigration policy, there are calls for more restrictive measures, even when they have proven ineffective. The Biden administration should focus on policies that have proven effective by opening up more legal pathways to the United States.
Stuart Anderson is executive director of the National Foundation for American Policy (NFAP). From 2001 to 2003, he worked for the Immigration and Naturalization Service (INS) of the United States. This article first appeared on The Hill.
