The Biden Administration is considering a significant crackdown at the U.S.-Mexico border, which could have profound implications for Immigration Law. This action would be unilateral. The move comes after Congress failed to pass a bipartisan border bill. The White House is exploring using the same legal provisions President Donald Trump used.

Legal Authority

The administration is looking at Sections 212(f) and 215(a) of the Immigration and Nationality Act (INA). These laws grant the President broad power. Consequently, they can suspend or restrict the entry of non-citizens. This is allowed if their entry is deemed “detrimental to the interests of the United States.”

• Section 212(f) allows the president to stop the entry of any class of non-citizens by proclamation.
• Section 215(a), on the other hand, makes it illegal for non-citizens to enter the U.S. without a presidential order.

These same laws were the basis for some of Trump’s most controversial policies, including the travel ban. Furthermore, the Supreme Court upheld the constitutionality of this authority in the 2018 case Trump v. Hawaii, confirming the president’s wide-ranging power over immigration matters.

The Political Context

Without a legislative solution, the White House is exploring executive actions that do not require congressional approval. Therefore, using these controversial provisions would allow the President to implement a broad crackdown at the border. This could include restricting asylum claims and increasing deportations.

Potential Challenges

If the Biden administration uses this authority, it will likely face immediate legal challenges. In fact, immigration and human rights advocates would file them. Critics argue that using these provisions to shut down asylum access would violate U.S. and international law, which provides a right to seek refuge.

Ultimately, this potential move highlights the difficult position the administration is in. It is trying to balance political pressure with humanitarian principles.