The White House is considering using provisions of federal immigration law repeatedly tapped by former President Donald Trump to unilaterally enact a sweeping crackdown at the southern border, according to three people familiar with the deliberations.
The administration, stymied by Republican lawmakers who rejected a negotiated border bill earlier this month, has been exploring options that President Joe Biden could deploy on his own without congressional approval, multiple officials and others familiar with the talks said. But the plans are nowhere near finalized and it’s unclear how the administration would draft any such executive actions in a way that would survive the inevitable legal challenges. The officials and those familiar with the talks spoke to The Associated Press on condition of anonymity to comment on private ongoing White House discussions.
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The exploration of such avenues by Biden’s team underscores the pressure the president faces this election year on immigration and the border, which have been among his biggest political liabilities since he took office. For now, the White House has been hammering congressional Republicans for refusing to act on border legislation that the GOP demanded, but the administration is also aware of the political perils that high numbers of migrants could pose for the president and is scrambling to figure out how Biden could ease the problem on his own.
White House spokesperson Angelo Fernández Hernández stressed that “no executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected.”
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“The administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system,” he said. “Congressional Republicans chose to put partisan politics ahead of our national security, rejected what border agents have said they need, and then gave themselves a two-week vacation.”
Arrests for illegal crossings on the U.S. border with Mexico fell by half in January from record highs in December to the third lowest month of Biden’s presidency. But officials fear those figures could eventually rise again, particularly as the November presidential election nears.
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The immigration authority the administration has been looking into is outlined in Section 212(f) of the Immigration and Nationality Act, which gives a president broad leeway to block entry of certain immigrants into the United States if it would be “detrimental” to the national interest of the United States.
Trump, who is the likely GOP candidate to face off against Biden this fall, repeatedly leaned on the 212(f) power while in office, including his controversial ban to bar travelers from Muslim-majority nations. Biden rescinded that ban on his first day in office through executive order.
But now, how Biden would deploy that power to deal with his own immigration challenges is currently being considered, and it could be used in a variety of ways, according to the people familiar with the discussions. For example, the ban could kick in when border crossings hit a certain number. That echoes a provision in the Senate border deal, which would have activated expulsions of migrants if the number of illegal border crossings reached above 5,000 daily for a five-day average.
House Speaker Mike Johnson, R-La., has also called on Biden to use the 212(f) authority. Yet the comprehensive immigration overhaul Biden also introduced on his first day in office — which the White House continues to tout — includes provisions that would effectively scale back a president’s powers to bar immigrants under that authority.
