Explainer-US border security: What could Biden, Congress and Texas do?

© Reuters.

By Ted Hesson

WASHINGTON (Reuters) -U.S. President Joe Biden is blaming Republicans for refusing to pass legislation to reduce illegal immigration at the U.S.-Mexico border while Republicans say the Democratic president should first use his executive authority to stem crossings.

At the same time, the Republican-led state of Texas is being challenged in court after trying to implement its own immigration law allowing Texas authorities to arrest and detain people suspected of being in the country illegally.

WHO IS RESPONSIBLE FOR US BORDER SECURITY?

Both Biden and Congress could take steps to address border crossings as immigration has become a top concern for Americans in the run-up to U.S. elections on Nov. 5 where Biden is seeking a second term.

The U.S. Congress is responsible for making federal immigration laws although partisan gridlock has meant there has not been a major reform bill passed in decades. 

The executive branch of government headed by the president is responsible for enforcement and can create regulations and policies that implement the laws. However, executive actions introduced by both Republican and Democratic presidents have faced legal challenges.

U.S. states historically have not been able to create and enforce their own immigration laws but the Republican-controlled state of Texas is trying to do that.

Texas passed a law known as Senate Bill 4 last year that would allow Texas authorities to arrest and prosecute people suspected of being in the country illegally.

The law was set to go into effect this month but the U.S. Department of Justice and advocacy groups sued to block its implementation, arguing that it conflicts with federal law. 

A U.S. district court judge in Texas blocked the law from taking effect and the 5th U.S. Circuit Court of Appeals is currently considering whether it should remain blocked.

WHY IS BIDEN BLAMING REPUBLICANS?

The White House says Congress should approve more funding and enforcement authorities to deal with border crossings and that Republicans have refused for political reasons. 

Since October 2023, Biden has called on Congress to approve $13.6 billion in additional border management funds that would pay for 1,300 additional border patrol agents, 1,600 new asylum officers and 375 new judge teams.

The White House also backed a bipartisan bill in the U.S. Senate that would make it harder to claim asylum at the border and create a new authority to send migrants and asylum seekers back to Mexico if crossings reach certain levels.

But Republicans have opposed both the additional funds and Senate border bill, saying Biden should first restore the restrictive policies of Republican former President Donald Trump, Biden’s challenger. 

The Biden administration says Republicans caved to Trump after he came out in opposition to the bipartisan Senate bill.

WHAT ACTIONS IS BIDEN CONSIDERING WITHOUT CONGRESS?

The White House has considered executive actions to reduce illegal immigration in the coming year, two U.S. officials and a third source familiar with the matter told Reuters in February. 

One option under consideration was using executive authority to deny more migrants asylum at the border, the source familiar with the matter said. The move would use a legal statute known as 212(f) that served as the basis for Trump’s travel ban policies blocking travelers from some Muslim-majority nations and other countries, the person said. 

The Supreme Court upheld the travel ban policy in 2018, but a separate Trump effort to deny migrants at the border using the same statute was blocked in court.

WHAT DO REPUBLICANS SAY BIDEN SHOULD DO?

Republicans say Biden should reinstate Trump-era policies that sought to deter border crossings and roll back new measures that offer certain migrants ways to enter legally.

Republicans want Biden to restart the Trump-era “remain in Mexico” program, which forced certain non-Mexican migrants to wait in Mexico for the resolution of their U.S. cases.

As a president candidate in 2020, Biden argued the policy forced migrants to wait in dangerous conditions in Mexico. The Biden administration ended the policy in 2021 shortly after he took office.

The Mexican government opposes the program, which would complicate any attempts to restart it. Democrats and immigration rights groups oppose it, too.

Republicans also say Biden should resume construction on a wall across the U.S.-Mexico border. 

Biden issued a 2021 proclamation pledging that “no more American taxpayer dollars be diverted to construct a border wall” and halted ongoing construction.

In a reversal, the Biden administration said last year that it would proceed with some border wall construction using Trump-era funds although whether that has proceeded remains unclear. 

A U.S. district court judge earlier this month ordered the Biden administration to halt its efforts to redirect $1.4 billion in Trump-era border wall construction funds to other projects.

Republicans say Biden should detain all migrants encountered at the U.S.-Mexico border, something that the Trump administration was not able to do. The Biden administration is already holding around 39,000 migrants in U.S. Immigration and Customs Enforcement detention facilities around the country, according to public ICE data, more people than its funded capacity for 34,000.