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If Biden Can’t Get Congress To Open The Borders, He’ll Likely Do It Himself


Yesterday, a federal judge in Texas temporarily blocked the Biden administration’s brazen attempt to freeze all deportations for 100 days. Joe Biden had promised during the campaign that if elected he would declare a “moratorium” on deportations a part of a broader effort to roll back nearly all of the Trump administration’s immigration policies. But it turns out there are limits to what even a Democratic president can do by executive decree.

Stated in plain terms, the problem with Biden’s attempted deportation freeze is that it violates federal law. A lawsuit brought by Texas Attorney General Ken Paxton rightly argues the Biden administration is bound by federal immigration law and cannot simply change it by administrative fiat. At the very least, executive branch agencies must follow something called the Administrative Procedure Act, or APA, which sets forth certain standards and processes for how federal agencies must enact major changes like the one Biden proposed.

You might recall that the APA played a role in thwarting the Trump administration’s attempt to rescind Deferred Action Against Child Arrivals (DACA) last year when the U.S. Supreme Court ruled in a 5-4 decision that the administration had not followed the APA in issuing an order to end the program. But there’s a big difference between how the APA got in the way of Biden’s deportation freeze and how it got in the way of Trump’s cancellation of DACA.

In Biden’s case, he really did violate the APA by attempting to ignore immigration law, in effect creating a whole new law—and more or less abolishing Immigration and Customs Enforcement —by decree. Consider that Biden’s order would have suspended all deportations, including for people with a final order of removal, which generally means their cases have been heard before an immigration judge, their appeal or appeals have failed, and the relevant federal agencies have been issued orders to deport them from the United States.

In other words, they have had due process according to the law, and the law has determined that they cannot stay. With the stroke of a pen, Biden would have shut it all down, the law be damned.

By contrast, in Trump’s case the APA was invoked by a five-member majority of the Supreme Court last year as nothing more than a justification “to avoid a controversial but legally correct opinion,” as Justice Clarence Thomas put it in his dissent.

Remember that the Obama administration created DACA out of whole cloth, without following, or even attempting to follow, the requirements set forth in the APA. In fact, the program was conjured up by nothing more than a memo dashed off by then-DHS Secretary Janet Napolitano that simply decreed some 700,000 illegal immigrants were to be protected from deportation and issued work permits.

As Thomas wrote in his dissent, “Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning.” DACA, added Thomas, “fundamentally altered the immigration laws” and created “a new category of aliens who, as a class, became exempt from statutory removal procedures and it gave those aliens temporary lawful presence.”

Whatever you think of Trump’s overall approach to immigration and border security, his efforts to end DACA were an attempt to set right what Obama got wrong—and got away with. Biden’s recent bid to rewrite immigration law by simply declaring no deportations for 100 days is of a piece with the kind of executive overreach we saw in the Obama administration. It seems what Democrats cannot accomplish in Congress, they will simply declare as law when they gain control of the White House.

It’s unclear how this particular case will end. The judge’s order suspends Biden’s deportation freeze for two weeks while both parties prepare their cases (although it’s likely that Texas will prevail, as the judge indicated in his order).

But no matter how this one case ends, Biden’s trajectory on immigration is clear: he plans to radically re-make U.S. immigration law, and what he can’t get through Congress—like his proposed amnesty for millions of illegal immigrants—he will attempt to accomplish by proclamation. And if the federal judiciary doesn’t step in, he’ll get away with it—just like Obama did.