If 800 soldiers can’t stop the caravans at the southern border, will an executive order do the trick? Donald Trump may issue an EO suspending all asylum grants from Central America, the Washington Post reported last night. That would effectively close down any legal avenue for their entry — at least until courts weigh in on the idea:
Fixated on the migrant caravan moving north through Mexico, President Trump is weighing a plan to shut the U.S. border to Central Americans and deny them the opportunity to seek asylum, asserting similar emergency powers used during the early 2017 “travel ban,” according to administration officials and people familiar with the proposal.
The White House is also preparing to deploy as many as 1,000 additional U.S. troops to assist in security operations at the southern border in anticipation of the caravan’s arrival, officials said.
Under U.S. law, foreign nationals fleeing persecution have the right to apply for asylum once they reach American soil, but the executive order under consideration would suspend that provision and bar Central Americans as a matter of national security, according to those familiar with the proposal.
Such a move would probably trigger immediate challenges in U.S. courts.
The White House has not yet confirmed this — but they’re not denying it either, NPR reports. One can see why Trump might like this idea. At least theoretically, it would allow him to act with executive authority to resolve a crisis, and provide a clean and anticlimactic end to the caravan issue. Grants of asylum get processed through two executive agencies: U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS), and the Executive Office for Immigration Review (EOIR) in the Department of Justice.
That’s the theory, anyway. In practical terms, it might not be such a clean anticlimax, as Paul Mirengoff points out:
Such an executive order would resemble the travel bans Trump ordered at the outset of his administration for individuals from certain countries, mostly in the Middle East. Like those orders, this one would face immediate challenge in court.
It might prove more difficult than the travel bans to defend in court on national security grounds (and the travel bans were not an easy lift). The current process that the caravan’s backers seek to exploit is ridiculous and, over time, destructive. But it may be hard to convince judges that the processing of, say, 3,000 to 5,000 more immigrants who are exploiting the system creates a national security emergency.
Changing that system would require legislation from Congress, not just an executive order. The Trump administration will argue in court — as they did with the travel bans — that the executive is at the zenith of its authority when dealing with border and entry issues, and that courts have very limited jurisdiction for scrutinizing asylum policies. In part, they will rely on the same arguments for executive and prosecutorial discretion that the Obama administration used to create DACA. The courts ended up supporting that argument in the end on Trump’s visa suspensions, but only in a very limited way and only after Trump had to rewrite the “travel-ban” EO twice.
That might be beside the point, however. The motivation here is twofold: first to deal with the crisis at hand when thousands of people show up demanding asylum, and second to be seen as dealing with the crisis at hand. An EO would work in the short run for both goals and act as a disincentive to successive “caravan” efforts. Even a court injunction against it would probably help Trump politically in the next few days. There are almost no downsides to it for Trump, so expect to see the EO come soon.
Whether it actually stops anyone is an entirely different matter.