Biden is doing the right thing on asylum

A wise middle ground between Trump's insanity and an unserious left

After House Republicans killed a bipartisan border security bill at Trump’s request earlier this year, there were widespread rumors that the administration would try to implement some of its provisions via executive order. That kept not happening, which I know alarmed some moderate Democrats in congress. The number of “encounters” at the US-Mexico border did plummet this spring on a year-on-year basis, but that seemed to raise the prospect that Biden would simply declare victory rather than moving to secure the center ground on immigration.

But last week the administration announced several orders, the most important of which involves a quasi-shutdown of asylum claims until the number of claims goes down to a manageable level. Claims have skyrocketed in recent years in part because of push factors in the Western hemisphere (the collapse of the Venezuelan and Cuban economies, chaos in Haiti) but also because of an administrative loophole that I’ll go into more detail on below.

Before we get into the weeds, though, I want to say first that I love immigration — see my book, One Billion Americans — and I sincerely hate the Trumpian impulse to demonize immigrants and asylum-seekers. There are always some troublemakers in any large population, but immigrants commit crimes at lower rates than native-born Americans, and the vast majority of people seeking to exploit the asylum loophole are just people seeking opportunity for themselves and their families in this country, the same as our ancestors did. My great-grandparents had the privilege to immigrate legally at a time when the legal barriers to immigration from Europe and Latin America were dramatically lower than they are today. The motives and interests of the people coming today are no different from their motives, and we shouldn’t talk shit about them or fearmonger.

But even though push factors are relevant, the flip side of not demonizing the people exploiting asylum loopholes is we shouldn’t play dumb about it. People come here not because they are bad people or criminals, but for the same reason people have always come here — economic opportunity. If we want to preserve special humanitarian exemptions to the rules over the long term, we need to demonstrate that those exemptions are not gaping loopholes to the system of immigration laws. That means cracking down until the numbers become manageable and committing to repeating that process if they become unmanageable again.

If we want to increase the number of people who are allowed to move here legally (which I certainly do), we need to do what the Biden administration has been doing on a separate track, which is creating more paths to orderly legal migration.

The asylum problem is serious

These college professors yelling at David Leonhardt is emblematic of why I think Biden has this right and his critics have it wrong.

The legal right to make an asylum claim was enshrined in both international law and American domestic law a long time ago. And for a long time, the number of asylum claims being made was quite low. If you think about the world as it existed in 1971 or 1957 or whenever else, it can’t possibly be the case that the number of asylum claims was low because there was nobody suffering from persecution or other serious hardships.

I can’t tell you exactly why the number of asylum claims was so much lower in 1984 than in 2024, but the world was much poorer and much less democratic 40 years ago. We know it’s not because there was nobody with a vaguely sympathetic case. But the logistics of getting to the United States were harder, and the general understanding was that even if you did figure out some way to make it there and present yourself to border officials, your asylum claim probably wouldn’t succeed.

Things have changed over the past decade. People have started making asylum claims as a desperate legal tactic to avoid deportation. Teenagers are coming to the border without parents in great numbers. The caseloads have become unmanageable.

And once the caseloads become unmanageable, asylum claims have become a loophole.

If you show up at the border illegally, you have a legal right to claim asylum and have your case adjudicated, but there’s no way to have your case adjudicated promptly. The US government does not have the capacity to imprison everyone throughout the duration of the adjudication process, and doing that would be costly and cruel. So people are being released pending their hearing, then, that poses the difficult question of what to do with someone making an asylum claim. Do you prevent them from working, in which case they either suffer or become a public burden? Do you allow them to work, in which case exploiting the loophole becomes even more attractive? Do you kind of muddle through and deny people legal permission to work, but limit how much public assistance they can get, which means tolerating a lot of off-the-book labor? There’s no good solution to the problem of a crushing load of asylum claims, so we need to address the loophole.

The idea that it’s not a loophole because the right to make the claim is guaranteed international law is absurd. It wouldn’t be a loophole if it didn’t have a legal basis!

1. The United States has a set of immigration laws governing who can enter the country and under what circumstances.

2. People have always had some ability to break those laws, just as people break the laws against stealing cars or selling cocaine or cheating on taxes.

3. But the asylum system, which is both overwhelmed and also known by potential migrants to be overwhelmed, has become a loophole — a means through which you can subvert the desired outcome of the body politic without formally breaking the rules.

In my very first article about Biden and immigration, my complaint was that he should focus more on point three, which is a question of goals.

Immediately upon taking office, Biden announced some immigration policy changes, but also announced that due to Title 42, none of the changes should actually matter in practice. Encounter numbers started to rise, at which point Republicans began bashing Biden, and the White House started complaining that their policy changes were not responsible. What I wanted the administration to do, right then and there, was admit to itself (and to Progress Caucus members on the Hill, and to left-wing immigration advocacy groups) that welcoming a larger number of asylum-claimants to the United States was not a policy outcome that Joe Biden desired.

There’s plenty of room for reasonable debate about which measures are efficacious in achieving that end, or which measures are simply so costly (in financial or humanitarian terms) that they’re not worth implementing. But you have to start with the basic question, “Do we think it’s good that people have discovered this loophole and are using it?” I think the baseline immigration lawyer view is that it’s good. If someone discovered some brand new procedural tactic that made it easier for people who commited crimes to avoid conviction, the defense bar would celebrate. But most people would probably say it’s bad and that we need to close the loophole. The same is true, it seems to me, for asylum claims, and that’s what Biden is trying to do.

The new rules

The essence of the new Biden system is to declare that the system is now overwhelmed, and anyone who crosses into the country illegally will be per se ineligible for asylum. If the number of encounters falls dramatically to a much more manageable level, that rule will lift and we will return to adjudicating fresh asylum claims.

For a variety of reasons, it is a little hard to say how effective this will be in practice. But I think it makes sense as a rule, and I hope that Biden articulates it forcefully to the public, because it correctly captures two ideas that I think most people can support:

• It is a good idea, in principle, for people to be able to seek asylum in the United States.

• The current system is not working as intended and is causing tons of problems.

Biden is not saying that he hates refugees and the United States should never again be a beacon of hope for desperate people. But he is saying that he is going to place the practical day-to-day needs of American citizens ahead of the procedural rights of foreigners.

The unreasonable backlash to Biden

It now looks like the cause of the delay in Biden’s executive orders is that they were waiting until after the presidential election in Mexico, because that’s what Morena (the political party both Andrés Manuel López Obrador and Claudia Sheinbaum belong to) had asked for. The consensus seems to be that the spring decline in encounters had more to do with enforcement actions taken by the Mexican government than with anything Biden did, and maintaining cooperation with Mexico is crucial to any border security measure. Conservatives hate to admit this, but when they rant and rave about the need to bring back “remain in Mexico,” they’re saying that they want to bring back a policy that is only workable with the active cooperation of the Mexican government. Mexican cooperation stepped up this spring, that reduced the number of encounters, and now Biden is (wisely) trying to further crack down on abuses of the system in a way that facilitates rather than undermines ongoing cooperation.

I obviously was not expecting immigration groups to cheer this move, as it cuts directly against their desire to hold enforcement reforms hostage to concessions on a path to citizenship.

But I really have been taken aback by the vehemence of the pushback from left-wing members of congress. Brian Beutler and I agree about the disappointing fecklessness of the Democratic response to Trump’s conviction, which he attributes to the caution of frontline members of congress and leadership’s proclivity to defer to them. Part of what you see with the immigration move, though, is that lots of members of congress are happy to go rogue and buck leadership, the White House, and the priorities of the frontline members by bashing Biden in the mainstream press. Elizabeth Warren is even fighting with her home state governor about this. Biden, wisely, has not been deterred from his course on asylum. But it is clear that all the whining from the left did get some kind of result, and the White House is now trying to smooth over wounded feelings.

I think that dynamic, rather than excessive caution about partisan hardball, is the real structural dysfunction in the Democratic Party. Progressives are complaining too much about no-brainer deference to public opinion and political reality, and the top figures in the party are wired to reward that whining. That’s not going to lead to a better, more humane, or more open immigration system.

A bipartisan deal would be better, Trump would be worse

The big shortcoming of this deal relative to the bipartisan agreement that Trump killed, is that immigration enforcement isn’t magic.

I always feel like restrictionists turn off significant portions of their brains when they talk about the need to “secure the border” or characterize imperfect enforcement of the rules as “open borders.” There is not, to the best of my knowledge, any law on the books that is perfectly enforced in the United States. If you look at the most serious crimes, like murder, you see that basically any time a murder happens, detectives are assigned to investigate it. A pretty large share of the perpetrators are caught. The judicial system really clears the decks to make sure that people accused of murder either plead guilty or else stand trial. Prison sentences for people convicted of murder are harsh. If not for those factors, there would be much more murder. And yet! Tons of people break the rule against murder. A decent share of them get away with it. Lesser crimes like burglary or driving while high on marijuana or drinking beer when you’re 19 have even spottier enforcement. To enforce all the rules perfectly all the time would require massive amounts of money and personnel, to say nothing of infringing on other rights and values that we think are important.

By the same token, just saying “no more asylum claims” doesn’t change the fact that there are only so many border officers and only so many places to hold people. You also can’t just “round up all the illegal immigrants,” because you would need some way to verify which people are and are not here illegally. Deporting people back to their home countries requires airplanes. Dumping them in Mexico requires Mexican cooperation. Immigration law is not magic.

What the Lankford-Murray bill (the one Trump urged Republicans to kill earlier this year) did in addition to changing the asylum rules was actually appropriate money to deal with the situation. The problem, from Donald Trump’s standpoint, is that he doesn’t want to deal with the situation, he wants to benefit politically from chaos. So he killed the deal. Biden is going to do the best he can, but Trump is going to try at every turn to make the border as chaotic as possible in order to use it as leverage to beat Biden.

I don’t want, or expect, progressives to actively agree with what Biden is doing.

But the inability to behave in a disciplined manner for five months and say “Donald Trump, a convicted felon and racist, is trying to stoke chaos at the border in a cynical effort to win the election, ban abortion, and cut his donors’ taxes” is driving me crazy — especially, because everyone knows Trump’s approach to immigration will be way worse.

Trump claims that if he were in charge, illegal crossings would drop to 2020 levels. But there was eight percent unemployment in 2020! Voters appear to have bought into a Trumpstalgia narrative whereby the total collapse of the American labor market during his final year in office was not his fault, because of Covid. Make of that what you will. But of course people weren’t trying to exploit asylum loopholes to work in the United States when the labor market had collapsed. Why would you do that? More people come when there are job openings.

Now, it’s totally possible that if Trump becomes president and stops deliberately sabotaging border security funding, he will generate some improvements relative to what Biden is able to achieve. That said, I also think that if Trump loses, his ability to sabotage will evaporate and Republicans will become more willing to finance border security.

What really gives me pause about Trump, though, are his ideas about every aspect of the immigration system other than asylum.

The main thing that Trump did in his previous term, before Covid killed off labor demand, was reduce legal immigration. Project 2025 is vowing to repeat Trump’s prior efforts against legal immigration, plus cut a half million DREAMers out of the legal labor pool, plus attempt to dramatically increase the federal government’s capacity to remove people who’ve been living here for a long time. If you shrink the pool of people working in the United States, you are going to generate serious economic problems and increase the incentive for employers to hire illegal workers. Trump is such a chaotic thinker and never gives coherent answers in interview questions, so it’s hard to understand what actual mix of policies he plans to implement. But if he bombs Mexico, as he says he wants to, then obviously border security cooperation is going to get worse rather than better. If he throws more resources at interior enforcement, he’ll have fewer resources for border enforcement.

In pro-Trump circles, the answer to all these questions is that Trump won’t actually do the insane things he says he’s going to do. And maybe he won’t — his reputation for dishonesty is well-deserved — but his stated agenda is terrible. The correct solution is to do roughly what Biden is trying to do: gain control of the asylum system and expand legal migration to meet the labor market needs of a country with an aging population.