How the Media Got the Border Proclamation All Wrong

June 11, 2024

By Matt O’Brien

The Biden Administration just issued a new immigration proclamation, asserting that it will secure the border and limit abuses of the asylum system. It will supposedly “suspend the entry of noncitizens who cross the Southern border into the United States unlawfully.” The White House says it will also bar the filing of asylum claims whenever the average number of daily encounters with illegal aliens reaches 2,500.

Not surprisingly, the media coverage of this new policy has been almost universally laudatory. According to The Hill, “The core of the new policy is the ability to refuse entry to most foreign nationals who cross the border without prior authorization.”

The Associated Press says, “The executive order will allow [President] Biden to declare that he has pushed the boundaries of his own power after lawmakers, specifically congressional Republicans, killed off what would have been the toughest border and asylum restrictions in some time.”

And CNBC has stated that “the executive order could also have economic impacts by tightening the labor market’s growth and potentially unclogging U.S.-Mexico supply chains.”

None of that, however, provides any substantive commentary on either the new proclamation or the state of U.S. immigration law.

The real story here is that the administration has spent most of the past three years claiming it has no authority to solve the nation’s immigration crisis. It has repeatedly cited this alleged dearth of power as a reason why Congress should have approved the Senate-proposed, bipartisan “immigration reform” bill that repeatedly failed in the House earlier this year.

This assertion about the lack of executive power to secure America’s borders, however, has always been a lie. Section 1182(f) of the Immigration and Nationality Act, or INA, expressly gives the president the power to suspend the entry of all, or any class of, aliens whenever their entry would not be in the best interests of the United States.

The White House has always been well aware of Section 1182(f) and the power it conveys. At least 16 times, President Biden has invoked that power to suspend the entry of foreign terrorists, aliens against whom sanctions were imposed, and noncitizen criminals. Moreover, Section 1182(f) was the provision at issue in Trump v. Hawaii, wherein the Supreme Court confirmed the president’s broad discretion to suspend the entry of any or all aliens to manage the nation’s borders.

Meanwhile, it is utterly shocking for The Hill to claim that the new proclamation suddenly created the ability to “refuse entry to most foreign nationals who cross the border without prior authorization.” First, that is utterly dreadful syntax; how exactly does one refuse entry to somebody who has already come to the United States? Aside from that, the INA specifically states that lawful admission to the U.S. depends upon prior authorization from the federal government (i.e., via the issuance of a visa) and inspection by an immigration officer. It’s been that way since roughly 1795.

Furthermore, the AP’s assertion that the current proclamation is somehow extraordinary simply doesn’t stand up to scrutiny. There have been at least 64 invocations of Section 1182(f), with every president since Ronald Reagan using it at least once. That’s an average of nine invocations per president, making using the presidential power to exclude aliens common rather than unusual.

Finally, CNBC’s attempt to portray this half-hearted attempt to gain control of the border as having economic benefits is also absurd. This administration has allowed millions of aliens to proceed unimpeded to the interior of the United States. It is an absolute certainty that many of them are already working — lawfully or unlawfully. For the percentage that isn’t working, cities across the country are hemorrhaging cash to feed and shelter them. There is no way this last-minute Band-Aid is going to tighten labor markets or improve trade with Mexico in any way that improves our economy.

This exercise is nothing but smoke and mirrors. In Ekiu v. United States (1892), the Supreme Court flatly stated, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”

In plain English, that means the U.S. is not obligated, under any circumstances, to allow any foreigner to enter the U.S. So, if the current president were serious about securing the border, why would he limit himself to acting only after 2,500 aliens have violated our border each day?

And the scariest part is that our press corps — upon whom the American public used to rely for the truth — is either too ignorant of U.S. immigration law or too supportive of the anti-borders agenda to see the ruse for what it is.

Matt O’Brien is the Director of Investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.

Also published at The Washington Times, June 11, 2024.