Biden assures U.S. governors that he is considering the possibility of limiting migration through executive orders


U.S. President Joe Biden told the country's governors on Friday that he is analyzing which executive orders he can use to narrow down migration through the southern border after a bipartisan agreement failed in Congress earlier this month. He seemed to express frustration with the legal limits of his authority to act unilaterally.

Biden met with members of the National Governors Association in the East Room of the White House, where he asked them to urge their representatives in Congress to revive the bipartisan proposal that collapsed in just 48 hours. He also sharply criticized Republicans for withdrawing from the agreement after former President Donald Trump lobbied against it.

"Over time, our laws and resources have not kept pace with our immigration system, and it is damaged," Biden told the governors, lamenting that "petty politics" had interfered to end the agreement.

Later, in a private question-and-answer session with the governors, he indicated that he was exploring what his options were to do something through an executive order.

Spencer Cox, governor of Utah and Republican president of the association, later told reporters that Biden did not specify what actions he is considering taking, but he is grappling with the limits of what he can do without Congress.

"He did say that he has been working with his lawyers, trying to understand what decree would be ratified in the courts and be constitutional, and he seemed somewhat frustrated because the lawyers were not giving him messages in which he felt he could take the type of actions he wanted," Cox said.

Colorado Governor, Democrat Jared Polis, vice president of the governors' group, said the governors were left with "an overall impression that they are examining what they could do from the executive branch. Again, if we keep our expectations at a realistic level, that will be more limited than a legislative solution."

Polis said Biden mentioned that federal courts overturned some of Trump's immigration measures and noted that he wants to avoid a similar fate with any action he takes.

"So, there was frustration because that would also happen under his leadership, in the government of any president, if there is no change in the law," Polis said. "Many of the measures we need to apply are simply not legal under current law."

Cox added that Biden mentioned declaring an emergency at the border, something that theoretically could unlock additional federal funds that would be needed to implement any new border measures.

White House press secretary Karine Jean-Pierre declined to comment on private conversations.

Among the actions Biden is considering is invoking the powers described in Section 212 of the Immigration and Nationality Act, which gives the president broad authority to block the entry of certain migrants to the United States if it is detrimental to national interests.

Trump, the favorite to win the Republican presidential nomination, repeatedly used the powers of Section 212 during his presidency, such as his controversial restriction on travelers from majority-Muslim countries. Biden rescinded that ban on his first day in office by executive order.

But at a time when White House officials are examining various unilateral options, they have faced resistance from Justice Department lawyers who have been reluctant to give the green light to any immigration decree that could be quickly blocked in the courts, according to two people familiar with the deliberations. The Department declined to comment.

For example, Trump used the authority of Section 212 to issue a directive stating that migrants entering between official entry ports on the southern border would be ineligible to apply for asylum. But that was blocked in lower courts, and the Supreme Court—with a 5-4 vote—did not reinstate Trump's proposed ban. Anyway, any similar challenge could be different now, as one of the judges who ruled against Trump in the case, the late Ruth Bader Ginsburg, was replaced by Justice Amy Coney Barrett, who tends to vote conservatively.

Currently, Biden's use of presidential authority to prevent migrants from reaching the southern border is being examined, and people familiar with the conversations have warned that no conclusions have been reached, and Biden has not authorized any directive. In the end, the White House may also choose not to issue any decree.

"No decision has been made on this," Jean-Pierre said.

Cox noted that while he has pushed Biden to act unilaterally, ultimately more comprehensive solutions will depend on Congress.

"There is some disagreement about how much a president can do and cannot do, and I disagreed with the president about that," he said. "But we believe there is also a general consensus that Congress has to do something."

He said that if Congress cannot support the comprehensive agreement, then perhaps some parts of it—such as increasing money for Border Patrol agents and asylum-granting officials—could be added to future spending bills.