The last three presidents—George W. Bush, Barack Obama, and Donald Trump—tried to forge bipartisan immigration deals. Each failed in humiliating fashion. The risk of a similar failure is an argument against Biden trying to reach his own deal.
The president before them, Bill Clinton, did forge a bipartisan immigration deal with a Republican-led Congress hungry for a crackdown. Twenty years later, Vox deemed the law “disastrous” as it “laid the groundwork for the massive deportation machine that exists today.” The risk of an excessively punitive bill is another argument against Biden trying to reach his own deal.
And yet, Biden has powerful incentives to shoulder these risks and try to pull off one more bipartisan bill to add to his collection.
First and foremost, a “border security” bill is the price House Speaker Mike Johnson and other congressional Republicans insist Biden pay in exchange for aid to Ukraine.
And Biden really can’t afford to lose Ukraine. According to a recent Quinnipiac poll, Biden’s Ukraine policy is the only Biden policy for which the public approves more than disapproves, and only by a slight one-point margin (47% to 46%).
For what policy does Biden have the lowest approval? His handling of “the situation at the Mexico border,” which is underwater by 37 points.
Biden would have a tough time explaining to voters that he allowed Congress to stop funding the Ukrainian resistance because he didn’t want to change anything about his extremely unpopular border plan.
Second, because Biden’s border policy record is so unpopular, he has little reason to continue holding full ownership of it. Better to be able to say both parties are architects of the border strategy, and both share responsibility.
A bipartisan immigration bill wouldn’t completely inoculate Biden from Republican attacks. The GOP presidential nominee (almost certainly Trump) is unlikely to praise any compromise Biden signs. And even those in Congress who vote for any such bill could still try to pin future problems on the Biden administration’s implementation. Nevertheless, the issue is a huge net negative for Biden, so any opportunity to spread the political burdens is worth seizing.
Third, Biden isn’t the only Democrat facing a tough re-election. To keep control of the Senate, both Montana’s Jon Tester and Ohio’s Sherrod Brown, the last remaining red state Democrats besides the outgoing West Virginian Joe Manchin, almost surely have to win in 2024 (unless Democrats somehow manage to pick off Texas’s Ted Cruz or Florida’s Rick Scott.) Both veteran Democrats know better than most how to win elections on tricky terrain, and both have expressed interest in a border security bill.
(Brown and Tester appear eager to incorporate measures that would stem the flow of fentanyl; the rate of fatal drug overdoses is particularly high in Ohio.)
Fourth, while Biden risks some upset with his left flank by compromising with Republicans, so do Republican leaders risk fallout with nativist hardliners. Politico reports that House Freedom Caucus member Representative Chip Roy believes Speaker Mike Johnson is mishandling the border issue, among other things.
And the risk of alienating Latino voters appears low. A new poll of Latinos by UnidosUS, which asked respondents to share which issues are most important for politicians to address, finds that immigration ranks sixth, behind inflation, jobs, health care, crime, and housing.
Fifth, the underlying rationale of the Biden presidency is stability. He was elected as an antidote to Trumpian chaos. He defended his old age as the mark of deep experience and accumulated wisdom. No presidency is devoid of crises. But when crises persist on Biden’s watch—such as cities struggling to find beds for wave upon wave of migrants—it calls into question whether he is truly saving us from chaos. Making excuses or shifting blame for stubborn problems doesn’t cut it. Biden has an imperative to act.
Granted, Biden has acted. With Congress so profoundly divided, Biden’s border management strategy has relied on aggressive and creative assertions of executive power. But his executive orders have been challenged in court as unconstitutional by the American Civil Liberties Union and by Republican luminaries. Enacting a law would render moot the court cases over Biden’s powers.
As I explained last May, Biden has tried to impose order on an overwhelmed immigration system, making it harder for asylum-seekers to cross the border unannounced but easier to schedule appointments at ports of entry. For those fleeing Cuba, Haiti, Nicaragua, and Venezuela, Biden expanded the “humanitarian parole” program, which provides for a temporary suspension of immigration law for two years.
The number of unauthorized border crossings between official ports of entry dropped sharply from May to June, suggesting that Biden’s strategy worked as designed. But that number jumped back up in the subsequent months (though the Border Patrol identified 14 percent fewer crossings from September to October.) As the humanitarian parole program successfully accepts people at ports of entry from select countries, escalating numbers of migrants from places farther and farther away—including China and Africa—are adding new pressures on the U.S. Border Patrol and cities across the country.
David J. Bier and Ilya Somin of the libertarian CATO Institute see much to like about Biden’s executive orders, though they also see room for improvement. They recently argued for lifting the caps on how many people can get humanitarian parole. However, congressional Republicans are trying to restrict the use of humanitarian parole in any legislation.
The extraordinary difficulty facing Senate negotiators is the lack of agreement on what constitutes the problem. Republican leaders want to restrict the number of migrants who come to America. Democrats don’t necessarily want to limit the number of migrants, but they do want to manage the flow of migrants better so state and city governments aren’t overwhelmed.
Biden’s executive orders are based on the premise that immigration is good so long as it’s orderly. Migrants should move through official ports of entry at a reasonable pace, so state and city governments can help them find lodging and work. And we should want to find employment for migrants. America’s labor market has been tight, and some employers have struggled to fill positions. An influx of foreign workers should help companies fully staff up and reduce inflationary wage pressures.
However, House Republicans have rallied around a bill based on the premise that immigration is bad. It would restrict Biden’s use of humanitarian parole and fund Trump’s incomplete border wall. How much should Biden concede to the Republicans to win Ukraine aid?
Biden is in enough of a political jam that the prospect of signing any bill must look enticing. But Biden needs to sign a bill with a strong chance of working.
For example, the CATO analysts note that “arbitrarily low caps” in Biden’s humanitarian parole program “have effectively eliminated legal pathways for most immigrants who want to use them.” But the demand to come to America remains, leading to illegal entries: “Barring legal markets in much‐wanted goods or services predictably creates vast black markets to which millions of people seek access.”
A bipartisan law that looks like it will reduce illegal immigration and help bring order but fails in reality will not do much to help Biden.
Crafting an effective immigration policy is probably not a significant concern of Speaker Johnson, who appears to be content to avoid being the latest GOP leader undone by his bitterly divided conference. Linking a border security bill to Ukraine aid is mainly a way for Johnson to show the GOP backbenchers, who are skeptical at best about the Ukrainian war effort, that he got Biden to pay to get his Ukraine aid.
The divergent political goals of Democrats and Republicans will make negotiations extremely challenging. But Biden needs Ukraine aid, and Johnson needs to extract something from Biden for that for Ukraine aid. Biden should seize this opportunity to craft as good a bill as he possibly can.
