by Lanny Davis
Here is the headline that could have dominated the news two months ago – on July 25, 2023 – but didn’t:
“President Biden announces new rule to secure borders – will appeal federal court decision overturning it, if necessary all the way to the Supreme Court.”
Here are the facts:
On May 12, 2023, President Biden had no choice but to end the use of Title 42 to turn away illegal immigrants. Title 42 is part of the Public Service Act of 1944. It was based on a law passed in 1983 to restrict those infected by cholera during an epidemic at that time. In March 2020, at the beginning of the COVID outbreak, President Trump used that health-based federal law to give U.S. Border Patrol officers the power to turn away illegal migrants seeking asylum, due to the COVID pandemic. President Biden continued that policy when he became president in January 2021.
But in May 2023, President Biden could no longer justify the use of Title 42 based on a rampant COVID pandemic. He announced a “temporary rule” – pending a more permanent congressional fix. He set what seemed to be reasonable pre-conditions before an illegal migrant could enter the U.S. to obtain a final, legal ruling qualifying for “asylum.” What I will call here the “Biden Rule” was to require at least one of three conditions be met before illegal migrants can enter the U.S. to seek asylum status protection: 1) scheduling an appointment for an asylum hearing in the U.S., using a publicly available app; 2) obtaining sponsorship by a U.S. resident; 3) proving they face a “serious health condition of an imminent safety threat.” Otherwise, they are presumed “illegal.”
The immediate results of the Biden Rule were dramatic. Border crossings dropped by 42% since this past June. But then, in July 2023, a federal judge overturned the Biden Rule. I believe, but still do not know, that Mr. Biden directed the U.S. Justice Department to appeal that decision, “if necessary, all the way to the Supreme Court.” I don’t know why that was not a major White House announcement.
But that’s the point. Why hasn’t the White House communications shop made a big deal about the Biden Rule, its immediate evidence of effects, and its decision to appeal to the Supreme Court? Why haven’t we seen administration spokespeople and cabinet secretaries on the TV cable shows or on the Sunday shows – and President Biden himself at press conferences and in speeches?
This is not a Republican issue, nor a MAGA Republican issue. It is, and should be, a Democratic issue as well. Security on our borders and enforcing the law do not mean a lack of compassion for those seeking asylum. Most Democrats are just as concerned about this problem as Republicans.
Mr. Biden and congressional Democrats should also consider tightening the definition of what is necessary to qualify for “asylum.” Now that word is defined as including circumstances where an illegal migrant “faces persecution in their native country because of their race, religion, nationality, political opinion or another characteristic.”
Maybe Congress needs to tighten the definition further. Maybe given the unsustainable flood of Central American migrants over the southwestern borders, to qualify for asylum, a migrant must prove the “imminent safety threat” referred to in the Biden Rule. Perhaps Mr. Biden should ask the bipartisan House Problem Solvers Caucus and a similar bipartisan body in the U.S. Senate to lead the effort to pass new laws that would implement the Biden Rule and tightening of the definition of “asylum” – at least for starters before the needed broad, immigration reform package can be enacted.
Recent poll results show many Americans are concerned about Mr. Biden’s age. He justifiably responds: “I get it, but watch what I do.” The crisis on our borders is an issue where he can show vigor and leadership and action. And his communications team at the White House needs to focus on getting the facts out about Mr. Biden’s leadership on this issue.
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Lanny Davis is the founder of the Washington, D.C., law firm, Lanny J. Davis & Associates. He is one of the first to use the concept of legal crisis management to solve client problems – operating at the intersection of law, media, and politics. He is a former special counsel to President Bill Clinton in 1996-98 and served on a privacy and civil liberties panel appointed by President George W. Bush. He has been writing his “Purple Nation” column for more than 13 years.
Photo “Joe Biden” by Joe Biden.
