Opinion: The border compromise would’ve helped—a lot

Opinion by Fareed Zakaria, CNN

(CNN) — I have been arguing for a long time that the Democratic Party needs to recognize that the crisis at the southern border is real, that it is the result of a totally broken asylum system and that it needs to be fixed urgently. I got lots of pushback from people telling me I was wrong and cruel, and that I was buying into Republican rhetoric. But this week, the Biden administration and Senate Democrats finally acted to fix the system along the lines Republicans have been pushing for — only to find Republicans have now changed their minds.

A new Republican argument is that there is no need for any change in laws relating to asylum and that President Joe Biden can simply use executive authority to solve the problem. This is now the view articulated by former President Donald Trump, House Speaker Mike Johnson, Texas Gov. Greg Abbott, Florida Gov. Ron DeSantis, as well as Elon Musk, among other influential figures.

This is a complete turnaround for Republicans. In 2019, Rep. Steve Scalise explicitly argued, “It takes congressional action; you need to change the law.” The same year, Trump also said, “You have to change the loopholes; you have to change asylum.” Not anymore. The arch-conservative Oklahoma Sen. James Lankford, who was the Republican negotiator of the Senate bill, noted in amazement, “A year ago they said, ‘We need a change in the law.’ … Now the conversation is, ‘Just kidding, we don’t need a change in the law.’”

Trump was right in 2019. In fact, he knows it because he tried to use executive authority when he was president, but it either didn’t work or was altered or blocked by courts. He was able to turn away people once he could invoke Title 42 during the Covid-19 pandemic on the grounds of a public health emergency. Biden did allow that authority to lapse, but were he to try to invoke it today, courts would almost certainly rule that there is no public health emergency right now. America is still a country of laws, and the president cannot misuse his authority without being checked.

The conservative commentator David Frum explained the situation cogently on my CNN program last Sunday. Most people have an image of the problem that comes from the 1990s and 2000s, with hordes of undocumented immigrants crossing the border and evading law enforcement authorities. But that is not what’s happening now. Today, people come to the border and rather than running away from the law they run toward it. Many have figured out that if they apply for asylum, they are legally allowed to enter the country and go through an adjudication process that lasts about five to seven years. During that time, they slip into the country and start working. “Telling the president to enforce the laws misses the point,” Frum told me. “He is enforcing the laws; the problem is that the laws need to change.”

It’s not just the laws. The reality is that border authorities are totally overwhelmed, with about five times as many apprehensions at the southwest border in fiscal year 2023 as there were a decade earlier. Even deporting them requires people and funds. US Immigration and Customs Enforcement (ICE), the agency that actually carries out the deportations, is so low on funds that it will start cutting back on its activities within a few weeks.

The Senate bill was a serious effort to solve many problems. It would have provided funding for a large increase in staff — more than 4,300 additional asylum officers and support staff and thousands of other new hires in immigration and security. It would have given asylum officers much greater authority to make quick determinations about peoples’ statuses.

It crucially would have shortened the five-to-seven year adjudication process to a first hearing within a target of 90 days and a final determination in another 90 days. And it would have given the government the authority to declare an emergency if the number of arrivals rose beyond certain thresholds, allowing it to turn people away. If the number rose above an average of 5,000 people a day over a week, that authority would have kicked in automatically.

It’s not perfect. The basic standard to determine whether someone qualifies for asylum is still too low. It has been raised “a notch,” a senior White House official told me and conceded that the Democratic left had resisted raising it more. House Republicans could play a useful role by raising it even higher. But again, that requires changes to asylum laws.

The most obvious proof that Trump realizes that this bill would give the administration powerful tools to address this crisis is that he is so dead set that it should not pass. Were it to pass, it might well solve large parts of the border problem — which would not serve him politically. He wrote on social media, “This Bill is a great gift to the Democrats.”

The rest of the West is facing a similar challenge and is grappling with how to adjust immigration and asylum laws. Many countries have taken significant steps. Yet in America, one of its major political parties is determined to inflame the crisis rather than douse it, fiddling while the country burns, hoping that at least they can inherit the smoldering ruins.

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