For a Joe Biden White House, the toughest part of remaking U.S. immigration policy may actually be figuring out where to start.
President Trump has taken more than 400 executive actions on this one issue alone since taking office in January 2017, according to nonpartisan think tank the Migration Policy Institute. Undoing Trump’s immigration framework is not as simple as reversing what his administration has done, yet Biden’s desired reforms cannot be made without first doing so.
“They really have to come in, from my perspective, with a basic understanding that the damage that the Trump administration has done to the immigration system is immense and that they’ve done it through a large set of sometimes interconnected, sometimes independent administrative actions, right?” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project. “If you rolled everything back to where it was in 2015, there’d still be a lot of big problems with the immigration system. And if you’re serious about having an immigration policy, you know, you’ve got to have a plan for dealing with those problems.”
The Bipartisan Policy Center’s Immigration and Cross-Border Policy Director Theresa Cardinal Brown said if Biden wins, he will first need to separate that which can be undone in a day from the changes that Jadwat said will take months to years to get through the legal processes.
“Procedurally, the easiest things for him to do are executive orders,” said Brown. “It’s just literally signing new executive orders saying, ‘I rescind Executive Order Number Blah, Blah, Blah.’ And that could apply to the most recent visa bans. It can apply to the travel bans. It can apply to anything that was done strictly by executive order.”
One problem for a Democratic administration is that lawsuits waged against the Trump administration in response to its immigration orders would become defunct executive orders that do not automatically go away — they still must be concluded in the courts. Another issue with undoing any of Trump’s policies is the repercussions of doing so without planning how to respond to them.
For example, Brown said that if Biden wanted to reverse the travel ban against countries where terrorism has been endemic, U.S. consulates should be staffed and ready to process an influx of visa applications from citizens of the affected countries. If not, the Biden administration could face a backlash that it was not prepared for from a surge of immigrant hopefuls applying for admission.
It will take much longer to walk back changes made through lengthier processes. Overhauling the public charge rule, which declines admission to immigrants who have relied on or would rely on government assistance, would mean submitting a notice in the Federal Register of plans to change or rescind the rule, then months of public comments, months of finalizations, and months of regulatory processes. It might take a year and a half before anything changes. Alex Nowrasteh, director of immigration studies for the libertarian Cato Institute, said rules are among the “most difficult” types of policy changes to reverse.
“The main problem would be that a Biden administration might not want to rescind them all,” Nowrasteh wrote in an email. “Trump’s executive orders and rules that make it more difficult for American employers to hire temporary guest workers might remain untouched if the Biden administration is staffed by supporters of labor unions who favor labor-market protectionism.”
Amid the hundreds of tweaks and overhauls the Trump administration has made at the departments of Homeland Security, Justice, Defense, and others, it cut refugee admission levels to historic lows, replaced the diversity visa lottery with a skills-based model, and turned away migrants seeking asylum to wait in Mexico weeks to months for trial dates. Jadwat claimed the way that the Republicans have done so is by no coincidence but done to make it more difficult to undo it by a successor.
“The administration has been trying to … solidify a bunch of things through rules and sometimes enact rules to solidify things that they’ve already been doing as a matter of executive order or just policy, in order to make it more difficult for a subsequent administration to change that policy,” said Jadwat. “Whether those are executive orders, rules and regulations, changes in the way the agency does business, guidance, all these different tools … They have to come in with the understanding that it’s going to take a comparably ambitious effort to, at the minimum, roll back those changes.”
Tom Homan, a 35-year law enforcement employee who retired from his position atop U.S. Immigration and Customs Enforcement under Trump, warned that a reversal of policies that expedite the return of illegal migrants and ban on asylum seekers could prompt migrants to “flood” the southern border at rates comparable or higher than during the 2019 humanitarian crisis. At the height of the crisis in May, border law enforcement encountered 144,000 people who illegally crossed into the U.S. from Mexico or showed up without legal documentation at a vehicular crossing point.
“That means 31% of women aren’t being raped while traveling through Mexico to the U.S.,” Homan said. “It means children aren’t dying. So, once you get that message out to the rest of the world, ‘Enticements, come to the U.S.,’ it just means more women will be raped, more children dying, cartels will make billions of dollars. The same cartels that murder Border Patrol agents,” he said.
Biden is “just setting the world on fire. I said, ‘If he becomes president, we lose the border,'” Homan warned. “I mean it.”
