Commentary: Biden doesn’t have to pivot to hardline border politics

In a critical election year where what has come to be known as an all-encompassing “migrant crisis” holds center stage, New York City and state officials have coalesced around demanding that the federal government bring out the checkbook to defray billions in costs.

The focus on funding, acute as the need might be, obscures the fact that the federal government is capable of much more than that. From the standpoint of pure logistical and operational capacity, there’s hardly an entity as robust as the sprawling federal administrative state, and it has a lot of authorities around immigration.

It wouldn’t have to reinvent the wheel; templates exist for the sorts of interventions the federal government could implement, from expanded case management programs to increased processing capacity to an effort to actually place people, with support services and funding, in cities around the country. It has the capability, tools and resources to at the very least take a huge amount of pressure off New York City and other cities, and perhaps even shape these new arrivals more into a boon than a crisis.

That this isn’t happening is ultimately not for its inability to happen, but because the Biden administration has made the calculated choice not to do it, having decided early on that this issue was radioactive and the president would avoid its taint by staying at arm’s length. The passing of time and the ramping up of the crisis narrative has only further entrenched this decision. The administration also faces a chaotic showdown with increasingly lawless Texas Gov. Greg Abbott – who announced, with significant GOP institutional support, that he will openly defy federal authority at the southern border – and an absurd attempted impeachment of Homeland Security Secretary Alejandro Mayorkas, which ended in an embarrassing failure even as House Republicans don’t rule out trying again.

These naked abuses of power run downstream from conservatives’ apparently growing conviction that any humanitarian immigration is too much. Republican legislators have decisively rejected a border security package they had initially tied to Ukraine aid, branding as too lenient restrictions they would have jumped at just a few years ago, including the formalization of a program similar to the Trump-era Title 42 expulsion policy once border encounters hit a certain level. It’s clear that presumptive Republican presidential nominee Donald Trump is intending to again run on border bravado and posturing, and the party is inclined to go along – U.S. Senate Minority Leader Mitch McConnell reportedly killed the Senate version at Trump’s behest.

Biden, for his part, has kept in place or even reinstated various Trump-era immigration restrictions, and he seems preoccupied by the idea that the administration could inadvertently entice more migrants to come here by being too accommodating or providing too much assistance. The problem is that this lack of federal help doesn’t really seem to have discouraged anyone from coming, and instead just leaves them to their own devices or the machinations of red state executives and eventually landing in overburdened blue cities.

While there are certainly constraints on what a president can and can’t do, there’s plenty more the White House could be doing if it decided to reverse course and intervene aggressively on the logistics, and not only on restrictions and enforcement, which has been the dominant frame. In fact, it’s not clear that a pure enforcement approach would even be particularly workable. Setting aside the political wisdom and moral propriety of trying to just turn asylum-seekers away, there’s no clear legal basis to just stop allowing people to apply for this existing federal program.

As much as there’s been an effort to muddy the waters around their status, with commentators and political figures falsely referring to them as “illegal” or “unauthorized,” the people making their way into the U.S. aren’t evading the law or unknown to the authorities. They are in formal asylum proceedings that are explicitly authorized by and conducted under unambiguous federal law. New York City Mayor Eric Adams himself seems to have gotten tripped up by this distinction, having lamented during a recent interview that the city “can’t even turn them over to ICE,” apparently unaware that the vast majority are not currently deportable by Immigration and Customs Enforcement.

Obviously, the Trump era proved that you can always push the boundaries of executive restrictions, but this is just a race to the bottom. The better approach is to start treating asylum-seekers more like refugees. Aside from the process happening all externally, refugees get placed directly in specific cities where federally funded nonprofits are waiting to help them navigate the various systems central to establishing a life in the U.S., from finding housing to signing up for health insurance. You don’t hear much about the mass logistical and local budgetary problems this creates because, well, it doesn’t. If anything, most of the coverage out of cities like Buffalo, which has taken thousands of refugees in the past couple decades, highlights how the new population has been revitalizing the economy.

“A significant number of (asylum-seekers) are doing that already. They’re moving on to other states and other municipalities,” said Rep. Adriano Espaillat, who has been at the forefront of talks among the city, state and federal governments, as well as his counterparts in Congress. Significantly less than half of the over 150,000 migrants estimated to have come through the city’s shelter system are still under the city’s care; some have gained work authorization and moved elsewhere in the city, but tens of thousands are thought to have left altogether, bound for other parts of the country. If these placements could be done at the front end instead of the back end, it would save migrants and the city a lot of trouble.

“One of the advantages of the (refugee) resettlement network is that it is national in scale, but local in approach. So there’re all these resettlement agencies that already exist all around the country, both in major urban areas but also in more rural areas, midsize cities, that already have the capacity and have the training to work with forcibly displaced populations,” said Alicia Vasquez-Crede, director of the resettlement nonprofit Global Refuge’s Welcome Center in Texas. “It would seem like a logical next step to utilize that network, utilize all of these people who are already trained in doing this work, and then apply a similar model to asylum-seekers.”

There are benefits for refugees that the Biden administration can’t replicate for asylum-seekers – perhaps most significantly, immediate work authorization as well as direct cash assistance and health insurance, which this group wouldn’t be eligible for – but there’s no reason the actual placement infrastructure couldn’t be used. If it wanted to, the federal government could arrange for migrants to arrive in cities across the country, having coordinated with local officials and given direct grants to private sector partners to handle some of the heavy lifting of acclimatizing them.

It also does have avenues to infill some of the services that would help migrants establish themselves and adjust to life in a new country. The Department of Homeland Security has already dipped its toe into this pool with the Case Management Pilot Program, a small initiative tucked into the department’s broader alternatives to the detention system. It launched in 2021 to help asylum-seekers with mental and social services, referrals and some legal assistance. The program is managed through nonprofit partners – including Global Refuge – and expanded from $5 million in fiscal year 2021 to $20 million in fiscal year 2023.

The program isn’t geared specifically toward providing legal services, but it can include legal guidance, which among other things generates the most crucial thing for easing the pressure of arriving asylum-seekers: work authorization. Gov. Kathy Hochul recently implemented an initiative to help hire tens of thousands of migrants because it has become clear that this is one of the most direct avenues to get them out of the shelter system; nonetheless, this program requires work authorization. To actually get them, the migrants need some legal guidance and services, and the Case Management Pilot Program or programs like it could be a more robust avenue if they’re expanded.

The department hasn’t publicly said how many people have benefited from the initiative, but with those funding numbers, it can’t be more than a sliver of the current volume of asylum-seekers, especially when compared to its much larger surveillance effort under the same umbrella. House Republicans unsurprisingly hate the initiative, making the elimination of funding for the program a plank in their fiscal year 2024 homeland security appropriations proposal. Biden doesn’t have to wait around, though; the federal government is able to pull money from general funding pools for any purpose it wants. If the U.S. Supreme Court allowed Trump to divert $6 billion in military funds to pay for border wall construction, it would be ludicrous for Biden not to be able to take money from within the Department of Homeland Security to intervene to aid migrants.

There are other ways of helping get migrants stability and work authorization more quickly, including by tweaking their actual status, which can happen before people ever set foot in the U.S. The president has tentatively stepped in this direction too, via the use of humanitarian parole programs, a discretionary authority that he has used to process hundreds of thousands of Haitian, Cuban, Venezuelan and Nicaraguan asylum-seekers for orderly arrival and quick work authorization. Between those specific programs and the use of parole for Afghans and Ukrainians, among others, around 1 million people have entered the country via parole. It’s not a permanent or even particularly robust status, but it allows people to access the asylum system without having to just show up.

Biden has also leaned on Temporary Protected Status, which similarly grants work authorization and protections from deportation, this time not for specific individuals but all nationals of a country deemed to be fully unsafe for return. The Biden administration recently made the decision to grant the designation for Venezuela, which could grant protections and work permits to some 400,000 people. Unlike parole, TPS only applies to people already in the country, but there are plenty of current migrants who might benefit.

Espaillat alluded to recent spiraling instability in Ecuador as a rationale for potentially extending the program to that country. “Ecuador has pretty much avoided this gang warfare stuff for decades. It’s been all around. But I think, unfortunately, it finally hit home, right? You can expect the surge, I don’t need to be a rocket scientist to tell you that there’s going to be a surge. In fact, it was already happening,” he said. While he is putting forward a bill to implement TPS for Ecuador, the Biden administration could do so unilaterally, as well as expand parole programs.

The administration also maintained the existing annual cap of 125,000 refugees, but more stringently committed to hitting that cap and resettle tens of thousands of people from Latin American and the Caribbean after a couple fiscal years of significantly undershooting the caps that it had set. This might not at first seem directly connected to the situation with asylum-seeker arrivals, but “when we look at the countries that asylum-seekers are coming from and the situations they’re fleeing from, many of them are coming from the same situations as refugees … the only difference is just how they enter the country,” Vasquez-Crede said.

Coordinating their arrivals in a more orderly fashion, and with the opportunity to arrive with work authorization already in hand, lets a lot of steam out of the domestic migrant chaos. “Once you open the legal path to migration, it has a direct impact on the number of people that are trying to cross the border. When you shut it down, people rush to the border,” Espaillat said.

The Biden camp’s response to the Republicans’ increasing intransigence seems to be an attempt to defang their argument by proving that he, too, can be tough on immigration and is not the open borders codger his political opponents portray him to be. It’s a puzzling choice given this same strategy failed utterly to work for Biden’s former boss and predecessor Barack Obama, who famously brought the hammer down on undocumented immigrants during his first term before shifting course when it became abundantly clear that this would not entice Republicans to compromise. They now seem less willing than ever to even engage with Democratic counterparts, to the point that U.S. Sen. James Lankford of Oklahoma was censured by his own state’s GOP for daring to negotiate.

Ultimately, several of the political assumptions that seem to undergird a reluctance to tackle this issue head-on with the significant powers of the presidency appear pretty shaky. There’s no solid evidence that any restrictive policies have been particularly dissuasive – migrants have kept coming through every effort to block them, in part because many feel forced to and in part because, if the U.S. public itself can hardly keep track of the specifics of immigration policy, asylum-seekers even less so.

Meanwhile, the public perception of chaos at the border and in various cities is not doing Biden any electoral favors. Whatever pragmatic risk the administration thinks exists by helping migrants, it will be offset by the appearance of competent handling and the evaporation of the crisis narrative that has so effectively been weaponized by his opponents. We can safely expect nothing to happen on the legislative front, which leaves executive action. And there are concrete and largely proven levers for Biden to utilize. He just has to choose to pull.