Legal experts question if Biden is ‘using all of the resources at his disposal’ in light of failed border bill

America’s illegal immigration problems came to a head last week when Republican senators killed a bill intended to address some of the major problems contributing to the crisis at the southern border after months of bipartisan negotiations. 

The White House touted the measure as “the toughest and fairest set of reforms to secure the border we’ve had in decades.” But Republicans in the House and Senate said the bill failed on multiple fronts. 

“It fails in every policy area needed to secure our border and would actually incentivize more illegal immigration,” House Speaker Mike Johnson, R-La., said.

“Among its many flaws, the bill expands work authorizations for illegal aliens while failing to include critical asylum reforms. Even worse, its language allowing illegals to be ‘released from physical custody’ would effectively endorse the Biden ‘catch-and-release’ policy.”

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President Biden at the White House Dec. 13, 2023, in Washington, D.C. (Chip Somodevilla/Getty Images)

That policy, which has been challenged by Republican attorneys general, refers to the idea of letting immigrants await asylum processing into the interior as opposed to being sent to a detention facility. 

Critics of the bill, like Gene Hamilton, vice president and counsel for America First Legal, said the Biden administration “is already flouting the laws on the books for ideological ends” and that the Senate bill would have given Biden “top cover to continue his catch-and-release policies to an even greater degree.”

“Process on top of process, mandatory catch and release for some aliens instead of the current requirement to catch and detain. The list goes on and on. The net result would be a bureaucratic quagmire that grinds immigration enforcement to even more of a stop, would legitimize Biden’s insane policies and would result in a far weaker border than we even currently see,” Hamilton said. 

President Biden speaks with U.S. Customs and Border Protection officers as he visits the U.S.-Mexico border in El Paso, Texas, Jan. 8, 2023.  (Jim Watson/AFP via Getty Images)

But Erin Corcoran, executive director for the Kroc Institute of International Peace Studies at Notre Dame, said the nation’s current asylum process is not as cut and dried. 

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“The thing to think about right now is that this has been a problem, not just with the Biden administration. This was the problem with the Trump administration, the Bush administration. So you have asylum seekers, but then you also have people who are in the United States who are crossing the border who don’t have valid immigration status,” Corcoran explained. 

A U.S. Border Patrol agent watches more than 2,000 migrants at a field processing center Dec. 18, 2023, in Eagle Pass, Texas.  (John Moore/Getty Images)

“And they may get caught, and then the question is, how do we deport them? And it’s very clear that, under our current system, the number of people who don’t have valid immigration status in the United States — so, these aren’t people that are necessarily waiting for their asylum applications — exceeds the resources we have to support all of them.”

Corcoran explained that the way the Department of Homeland Security operates is similar to police departments in big cities that have to prioritize which crimes to prosecute based on severity of the crime and available law enforcement resources. 

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“They have limited resources. It’s the same thing with law enforcement. They have limited resources. They can’t deport every single undocumented immigrant in the United States,” Corcoran said.

“Someone who is a criminal or someone who’s a threat to secure national security, those are who we’re going to prioritize for deportation.” 

U.S. Secretary of Homeland Security Alejandro Mayorkas is sworn in during a House Homeland Security Committee hearing on Capitol Hill Nov. 15, 2023, in Washington, D.C. (Drew Angerer/Getty Images)

Corcoran noted that one of the biggest challenges to the immigration system is the asylum backlog. 

The Senate bill, Corcoran says, wouldn’t necessarily have provided mechanisms to enforce existing laws as much as it would have changed some things about asylum law that make it possible to adjudicate asylum claims at the border and create a more stringent standard by which people get admitted to the country. 

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Josh Blackman, law professor at South Texas College of Law, questioned whether, without the Senate passing the bill, the president “is using all of the resources at his disposal to vigorously enforce the law.” 

“It seems that Mayorkas is using broad conceptions of prosecutorial discretion to not prioritize removal as did the Trump administration,” he said.