Jean Lantz Reisz, University of Southern California
US President Joe Biden delivered the annual State of the Union address on March 7, 2024, casting a wide net on a range of major themes—the economy, abortion rights, threats to democracy, the wars in Gaza and Ukraine—that are preoccupying many Americans heading into the November presidential election.
The president also addressed massive increases in immigration at the southern border and the political battle in Congress over how to manage it. “We can fight about the border, or we can fix it. I’m ready to fix it,” Biden said.
But while Biden stressed that he wants to overcome political division and take action on immigration and the border, he cautioned that he will not "demonise immigrants,” as he said his predecessor, former President Donald Trump, does.
“I will not separate families. I will not ban people from America because of their faith,” Biden said.
Biden’s speech comes as a rising number of American voters say that immigration is the country’s biggest problem.
Immigration law scholar Jean Lantz Reisz answers four questions about why immigration has become a top issue for Americans, and the limits of presidential power when it comes to immigration and border security.
1. What is driving all of the attention and concern immigration is receiving?
The unprecedented number of undocumented migrants crossing the US-Mexico border right now has drawn national concern to the US immigration system and the president’s enforcement policies at the border.
Border security has always been part of the immigration debate about how to stop unlawful immigration.
But in this election, the immigration debate is also fueled by images of large groups of migrants crossing a river and crawling through barbed wire fences. There is also news of standoffs between Texas law enforcement and US Border Patrol agents and cities like New York and Chicago struggling to handle the influx of arriving migrants.
Republicans blame Biden for not taking action on what they say is an “invasion” at the US border. Democrats blame Republicans for refusing to pass laws that would give the president the power to stop the flow of migration at the border.
2. Are Biden’s immigration policies effective?
Confusion about immigration laws may be the reason people believe that Biden is not implementing effective policies at the border.
The US passed a law in 1952 that gives any person arriving at the border or inside the US the right to apply for asylum and the right to legally stay in the country, even if that person crossed the border illegally. That law has not changed.
Courts struck down many of former President Donald Trump’s policies that tried to limit immigration. Trump was able to lawfully deport migrants at the border without processing their asylum claims during the COVID-19 pandemic under a public health law called Title 42. Biden continued that policy until the legal justification for Title 42, meaning the public health emergency, ended in 2023.
Republicans falsely attribute the surge in undocumented migration to the US over the past three years to something they call Biden’s “open border” policy. There is no such policy.
Multiple factors are driving increased migration to the US.
More people are leaving dangerous or difficult situations in their countries, and some people have waited to migrate until after the COVID-19 pandemic ended. People who smuggle migrants are also spreading misinformation to migrants about the ability to enter and stay in the US.
3. How much power does the president have over immigration?
The president’s power regarding immigration is limited to enforcing existing immigration laws. But the president has broad authority over how to enforce those laws.
For example, the president can place every single immigrant unlawfully present in the US in deportation proceedings. Because there is not enough money or employees at federal agencies and courts to accomplish that, the president will usually choose to prioritise the deportation of certain immigrants, like those who have committed serious and violent crimes in the US.
The federal agency Immigration and Customs Enforcement deported more than 142,000 immigrants from October 2022 through September 2023, double the number of people it deported the previous fiscal year.
But under current law, the president does not have the power to summarily expel migrants who say they are afraid of returning to their country. The law requires the president to process their claims for asylum.
Biden’s ability to enforce immigration law also depends on a budget approved by Congress. Without Congressional approval, the president cannot spend money to build a wall, increase immigration detention facilities’ capacity or send more Border Patrol agents to process undocumented migrants entering the country.
4. How could Biden address the current immigration problems in this country?
In early 2024, Republicans in the Senate refused to pass a bill—developed by a bipartisan team of legislators—that would have made it harder to get asylum and given Biden the power to stop taking asylum applications when migrant crossings reached a certain number.
During his speech, Biden called this bill the “toughest set of border security reforms we’ve ever seen in this country.”
That bill would have also provided more federal money to help immigration agencies and courts quickly review more asylum claims and expedite the asylum process, which remains backlogged with millions of cases, Biden said. Biden said the bipartisan deal would also hire 1,500 more border security agents and officers, as well as 4,300 more asylum officers.
Removing this backlog in immigration courts could mean that some undocumented migrants, who now might wait six to eight years for an asylum hearing, would instead only wait six weeks, Biden said. That means it would be “highly unlikely" that migrants would pay a large amount to be smuggled into the country, only to be “kicked out quickly,” Biden said.
“My Republican friends, you owe it to the American people to get this bill done. We need to act,” Biden said.
Biden’s remarks calling for Congress to pass the bill drew jeers from some in the audience. Biden quickly responded, saying that it was a bipartisan effort: “What are you against?” he asked.
Biden is now considering using Section 212(f) of the Immigration and Nationality Act to get more control over immigration. This sweeping law allows the president to temporarily suspend or restrict the entry of all foreigners if their arrival is detrimental to the US.
This obscure law gained attention when Trump used it in January 2017 to implement a travel ban on foreigners from mainly Muslim countries. The Supreme Court upheld the travel ban in 2018.
Trump again also signed an executive order in April 2020 that blocked foreigners who were seeking lawful permanent residency from entering the country for 60 days, citing this same section of the Immigration and Nationality Act.
Biden did not mention any possible use of Section 212(f) during his State of the Union speech. If the president uses this, it would likely be challenged in court. It is not clear that 212(f) would apply to people already in the US, and it conflicts with existing asylum law that gives people within the US the right to seek asylum.
Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern California
This article is republished from The Conversation under a Creative Commons licence. Read the original article.