The American Civil Liberties Union has filed at least one lawsuit against the Trump administration for its brand-new policy to temporarily deny asylum to those traveling to the Mexican border via another country, until Congress can resolve the situation. Additionally, several media outlets, including the Associated Press, insist the new policy “may further strain immigration detention facilities.”
Leftist courts may block Trump’s new policy like they have many of his others, regardless of what the laws say, but the administration should make a strong case for it as a temporary alleviation of the emergency at the border that prioritizes national security. In fact, if Democrats care as much about asylum-seekers as they say they do, they would have already resolved the border debacle through Congress. Instead, they have steadfastly refused in order to exploit a breakdown in the rule of law for political points.
How Trump’s Policy Works
Trump’s new interim rule, issued jointly by the Department of Justice and the Department of Homeland Security, took effect Tuesday. It dictates that foreigners who travel through another country will not be eligible for asylum at the U.S. southern border unless they have applied for and been denied asylum in the countries they passed through on the way to America.
The Associated Press predicts this will likely affect Guatemalans and Hondurans the most, given the state of their countries and the route they take to illegally enter America then remain by exploiting asylum laws for which the vast majority of them are not eligible. Department of Homeland Security acting Secretary Kevin McAleenan issued the following statement:
While the recent supplemental funding was absolutely vital to helping confront the crisis, the truth is that it will not be enough without targeted changes to the legal framework of our immigration system. Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey. Ultimately, today’s action will reduce the overwhelming burdens on our domestic system caused by asylum-seekers failing to seek urgent protection in the first available country, economic migrants lacking a legitimate fear of persecution, and the transnational criminal organizations, traffickers, and smugglers exploiting our system for profits.
The administration has chosen to do this because the country is facing a border emergency. Attorney General William Barr issued the following statement:
This Rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum. The United States is a generous country but is being completely overwhelmed by the burdens associated with apprehending and processing hundreds of thousands of aliens along the southern border. This Rule will decrease forum shopping by economic migrants and those who seek to exploit our asylum system to obtain entry to the United States — while ensuring that no one is removed from the United States who is more likely than not to be tortured or persecuted on account of a protected ground.
While detention numbers are declining, Border Patrol and Immigration and Customs Enforcement are still over capacity and facing incredible criticism for it.
While Trump’s ban will likely, the AP says, “exacerbate overcrowding at severely strained U.S. immigration detention centers and makeshift holding areas,” it would only do so temporarily. Placing a hold on incoming asylum-seekers would allow Border Patrol and ICE to create more order from the chaos.
The Case for Trump’s Ban
While most outlets, including publications such as Reason, have argued that Trump’s ban may not survive legal scrutiny, his administration could make a strong case for it, given the stalemate confronting Congress and the country’s unique immigration crisis.
While this is a nation of laws and a place with an immense amount of legal protections and opportunities for asylum-seekers, the interim final rule “uses the authority delegated by Congress in section 208(b)(2)(C) of the Immigration and Nationality Act to enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States.”
Immigration statistics have also changed dramatically, showing a spike not seen since 1890, following the Depression. According to Pew Research, at that time, 14.8 percent of the population was “foreign born.” Now, 13.6 percent of the population is. For perspective, that percentage was only 4.7 percent in 1970. Not only is the foreign-born share of the population at a near historic high, nearly one-quarter of the foreign-born present are “unauthorized.”
Near-record illegal immigration numbers means detention centers along points of entry are overflowing, presenting officials a crisis never before seen in their lifetime. Democrats, particularly Rep. Alexandria Ocasio-Cortez of New York, seized on the opportunity to exploit the crisis for partisan gain. She immediately blamed Border Patrol, ICE, and the Trump administration for everything from failing to provide beds and toothbrushes to separating children from their parents. All these are policies Trump’s predecessor, Barack Obama, implemented as well.
Democrats Should Have Taken Action, but Didn’t
Ironically, an asylum ban would provide officials an opportunity to fix the very issues Democrats are complaining about. Yet now that the administration has taken a step toward slowing the crisis, the ACLU filed a lawsuit, and, as the Reason article stated, the administration faces criticism for implementing the ban using executive authority instead of “normal legislative channels.”
While it’s true that the saying conservatives often cited during the Obama years, “Rule by executive fiat, die by executive fiat” might apply here, it’s also clear why the administration didn’t do that: A congressional solution for a border emergency is impossible given that Democrats control the House and believe it is in their best political interest to keep the pathetic pictures of illegal immigrants coming.
The tough truth for Democrats to swallow is that they don’t care as much about asylum-seekers as they pretend. If so, they would have tackled this issue when the Obama administration wrangled with it, or they could now deal with the emergency by passing legislation to address the legal and financial problems causing this surge in illegal immigration and asylum fraud. Yet they refuse to do that, too.
Interfering with Trump’s ban, either through a lawsuit or circulating concerns that it will cause detention centers to overflow even more, allows Democrats to continue pretending hey care about asylum-seekers while continuing to do nothing about the conditions causing the overcrowding. Thus Democrats have pushed the administration into doing what is best for national security and asylum-seekers by refusing to take action themselves.