The Executive Branch Has Enormous Power Over Immigration—Why Aren't Democrats Using It?

Learning from Trump's use of executive power to set immigration policy

So far, at around the 125-day mark of Biden’s presidency, the new administration has used very little of the power available to it to improve conditions for migrants. Here, the Democrats can take a lesson from Trump, who flexed a great deal of the executive branch’s power over migration policy.

For all their awfulness, Trump’s immigration actions without a single vote from Congress underlined how much a president can get done on this issue without legislative support. Trump managed to push through a raft of major changes using only his bully-ish personality and disregard for politesse. He successfully instituted a travel ban from several Muslim-majority countries, which he actually called a “Muslim ban,” and then got courts and pundits to argue over whether its purpose was really to ban Muslims as such. Brilliant move, from a villainously immigration-restrictionist perspective.

Trump decimated the already inadequate asylum system—forcing people to remain outside the U.S. to apply for entry, altogether removing certain categories of protection, and generally making life miserable for asylum seekers in the U.S. by erecting obstacles such as work restrictions and delayed processing for work permits. He closed many of the international immigration offices that reviewed asylum petitions, which has dramatically slowed the processing of affirmative asylum claims. He lopped off the refugee cap to a fraction of the previous amount under Obama. He found money for his border wall (albeit not from Mexico), cut most legal immigration, and dramatically increased denials of foreign-born skilled workers.

Biden’s administration has instituted some changes. It has shifted enforcement priorities, done away with Trump’s public charge rule, and ended the remain-in-Mexico policy for asylum seekers. He is also discontinuing the use of two notorious detention centers. But these are minor tweaks in the sense that they bring us back to where things were prior to Trump.

The problem is that the status quo ante was never close to being a just system for people who wanted to come to the United States. Even if President Biden’s immigration plan were to pass through Congress word-for-word, it would still fall very short of representing a truly just immigration system. But the new administration isn’t even doing what it can via the channel it has available to it: the executive branch. Biden is still failing to think big for immigrants—and not in some idealistic, politically unattainable sense. We’re talking about significant changes that are well within the administration’s power. In short: it can do so much more.

The DOJ under Biden has continued to take land from citizens along the Southern border for Trump’s wall. Biden recently, and to a great deal of backlash, left the refugee cap at a paltry 15,000. Rather than moving swiftly to dedicate ample resources to ensure that unaccompanied migrant children are quickly resettled with family inside the U.S., the administration was caught wrongfooted by the uptick in children at the border. It seemed to spend more energy making sure nobody used the word “crisis” than resolving the ongoing crisis. It continues to turn away families seeking entry. It has yet to undo most of the damage done to the asylum system, including reversing the awful Matter of A-B- decision, which categorically denies asylum protections to women fleeing domestic violence.

While the president’s defenders have been streaming in from all corners of the press, Trump saw no need for excuses of this sort during his tenure. He simply acted in accordance with the power of his office. This is the lesson the Democrats have not learned: the executive branch enjoys wide discretion to shape immigration policy. If he wanted to, Biden could use the power of his office to make a strong statement about one form of American greatness: Ours is a nation that people want to come to, and ours is a country that will say yes to the needy to the best of our abilities, because we don’t just help people we owe things to, we help people who need things.

Critics might point out that both Obama’s and Trump’s immigration actions were tamed by court decisions that went against them. Obama used his executive power on DACA and its failed expansion in DAPA. The Supreme Court’s tie-vote on DAPA essentially canceled it out. Trump’s travel bans were subject to numerous rulings overturning or delaying their implementation. But one way to read these decisions is as executive-level mistakes; in other words, they do not represent true limitations on what the presidency can or can’t do.

There are many actions that Biden might undertake to protect migrants. He could have the attorney general not only reinstate asylum protections that have been stripped away but expand them by designating new social groups that merit protection. He could institute new regulations that allow asylum seekers to immediately be able to apply for work permits. He could close not just one or two but all private detention facilities (albeit at a high cost to the government). He could grant temporary protected status to any and every nation he wants. He could include a number of additional waivers of immigration violations that would allow people to fix their status while residing in the country.

The list of things that could be done in service of making things better for would-be immigrants is at least as long as the list of things Trump attempted in service of making life worse for them.

Biden, like his predecessors, would face political and even judicial opposition. Here again, Trump’s time in office is illustrative—Trump eventually got his Muslim ban through, found money for the border wall, and forced asylum seekers to remain in Mexico to pursue their cases. Executive actions do have a big downside: they can be undone by a future president at the stroke of a pen. But that shouldn’t be a disincentive to action. Force that future president to upend those policies. Their durability may surprise us—DACA survived the Trump years, after all.

Sadly, for all of its pro-immigrant rhetoric leading up to the election and thereafter, the Biden administration seems like it will only look to do the bare minimum on immigration. The minimum, in this case, is pitching a large legislative reform package that had little chance of passing and improving some basic regulatory functions here or there. But this doesn’t target the most oppressive and restrictive machinery.

In the end, Biden will continue the Democratic tradition of working against immigrants—only a little less than Republicans would, and with a kinder face. America, and would-be future Americans, deserve better.