Biden’s immigration order is built to fail

US President Joe Biden speaks with US Customs and Border Protection officers as he visits the US-Mexico border in El Paso, Texas, on January 8, 2023. (JIM WATSON/AFP via Getty Images/TNS)

President Joe Biden has issued an executive order that shuts down the southern U.S. border to all but a few asylum-seekers — a move reminiscent of former President Donald Trump’s efforts, which were blocked by the federal courts.

The political motivation is obvious: Immigration has become a serious worry for Biden in the presidential race, and Republicans in Congress have blocked bipartisan legislation that would have provided much-needed funding for border control and processing asylum applications.


Yet Biden’s order is both morally and legally troubling. If implemented, it would deny asylum to people who legally deserve it — those who would be persecuted in their countries of origin. And the order is almost certainly unlawful under the standards imposed by the courts on Trump’s similar orders. If federal judges are consistent, they will block Biden’s order from going into effect.

That’s the likely outcome. And it raises an important ethical problem at the intersection of politics and law: When is it justified for the executive branch to issue an order it believes will win some political points, but knows (or hopes) will be struck down by the judiciary? This cynical approach undermines the rule of law.

The legal issues are technical but can be summarized roughly as follows. Under current law, non-citizens (called “aliens” in legalese) who come to the U.S. and seek asylum cannot simply be sent home. They must be given an opportunity to make the case that, if sent home, they would be subject to persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Currently, federal law entitles them to a quick screening interview. Between 2014 and 2019, 83% of asylum-seekers passed this hurdle. In 2023, however, the Biden administration made it harder to get through the interview, and the number who pass that stage has since dropped to 52%. But, like the Trump administration before it, the Biden administration has now taken action to get the number a lot lower – essentially to zero.

Trump’s executive actions on the border relied on section 212(f) of the Immigration and Nationality Act, which says the president can suspend entry of any class of aliens if he determines their entry would be “detrimental to the interests of the United States.” To oversimplify a bit, the federal courts rejected Trump’s claim that this provision let him shut down the border to asylum applicants.

Other statutes say that people who have arrived in the U.S. “shall” be given the opportunity to claim asylum, irrespective of their manner of entry. The courts concluded, again oversimplifying a little, that section 212(f) did not allow the president to override those statutes.

Biden’s executive order also relies on, you guessed it, 212(f). The only real differences between Biden’s order and Trump’s are exceptions provided for unaccompanied minors and those subject to sex trafficking, and a statement that the border closure only applies while the number of “encounters” with asylum-seekers at the border stays above 1,500 per day. That number currently stands above 2,500 per day.

It’s hard to see why Biden’s exceptions should make a difference legally: If Trump lacks the authority to deem all asylum-seekers’ entry detrimental to U.S. interests, Biden shouldn’t have the authority to deem all asylum-seekers detrimental except for kids and people forced into prostitution.

The same logic holds for the supposedly “temporary” nature of the closure until the number of asylum-seekers at the border decreases. Asylum law isn’t about numbers. It gives each person the chance to seek asylum — and to get it — if the law fits his situation.

This brings us back to the ethical quandary. There can be little doubt that, if Biden’s order stays in effect, actual people who deserve and need asylum won’t get it. In the past, nearly a quarter of those who sought asylum received it or some other form of protection. Under the new order, many of those people would now be sent home to face persecution, from rape to torture to unjust imprisonment.

Yet the Biden administration surely knows that immigration advocates will challenge the order in court, as the ACLU has already indicated it plans to do. If the order is then blocked relatively quickly, as Trump’s orders were, then perhaps these asylum-seekers won’t be harmed. You can imagine someone thinking, “No harm, no foul” — and that order would be justified if it helps Biden get reelected. After all, in a Trump presidency, presumably, immigration opportunities would be even smaller.

The danger with this ends-justify-the-means thinking is that it undermines the idea of the rule of law itself. The Biden administration should have been more respectful of the precedent set by the courts under Trump. Now it’s up to the courts to make sure the law Congress passed is followed until Congress decides to change it.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”