The latest GOP attack on Biden has a huge hole in it

Opinion: The latest GOP attack on Biden has a huge hole in it

Opinion by Greg Sargent

Columnist

March 17, 2021 at 12:00 a.m. GMT+9

Republicans are convinced that attacking President Biden’s border policies will win them the midterms. House Minority Leader Kevin McCarthy (R-Calif.) has gleefully labeled the situation there “Biden’s border crisis.”

In this, Republicans are benefiting from a media debate that has gone off the rails.

There’s a huge hole in this GOP attack, but it’s rarely described clearly in news reports and commentary. You can read endless headlines warning of a “crisis.” But even if that’s so, a crisis relative to what, exactly?

What’s missing is a serious comparison with the pre-Biden status quo. It’s as if the current situation exists in a vacuum: Before there was no crisis, and now there’s a crisis.

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That’s absurd. The situation under former president Donald Trump was substantially worse from a humanitarian and a pragmatic governing perspective: worse for the migrants, worse for the rule of law and worse for our country.

Biden is cleaning up Trump’s mess

It’s true that child and teenage migrants are overwhelming our facilities.

Because they can’t get released alone, they must be held at Border Patrol facilities for 72 hours before getting transferred to the Office of Refugee Resettlement, which places them with relatives or guardians. The ORR facilities are jammed, backlogging border facilities.

This is a terrible situation. But it’s happening in large part because Biden is undoing a Trump policy that should be undone.

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Due to covid-19, the previous administration turned away most asylum seekers — without hearings — under a legal provision allowing a temporary block on noncitizens from entering to protect public health.

Biden is no longer applying this provision to unaccompanied children and teenagers (while keeping it for adults), helping fuel child backlogs. But that’s a move in the right direction, both from a humanitarian and rule-of-law perspective.

Coronavirus will be tamed before long, and we have a legal obligation to allow migrants to exercise their right to seek asylum. And as David Bier notes, that provision is not for controlling migrant flows outside a genuine public health rationale. If anything, expelling adults abuses it.

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So continuing to use this tool is not a tenable long-term solution to the humanitarian problem, and it’s not in keeping with the rule of law. That requires letting in the kids, and we will have to allow more adults to apply for asylum. The question is how we manage it.

The problem is not lax enforcement

Republicans claim we’re seeing a breakdown in enforcement, and that this, combined with Biden’s promise to reverse Trump’s policies, is causing the migrant spikes.

The first of these is false. Yes, we’re seeing a spike: There were over 100,000 detentions at the border in February.

But right now, the border is in large part closed: Many adult asylum seekers are getting turned away with zero due process. The decision to lift the public health restriction for children and teens is not an enforcement failure: No law is not going enforced. The administration is no longer incorrectly applying the law to children and teens, who aren’t a security threat.

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On the second claim, these spikes in migrations occur for complex reasons rooted in Central American conditions. Indeed, as Aaron Reichlin-Melnick shows, there was a huge spike in 2019, amid Trump’s draconian policies.

Expectations of a policy reversal might play some role in spurring people to attempt to apply for asylum. But all this really means is that Trump was denying them that legal right, and Biden will not be denying them that legal right.

Trump’s “solutions” were designed to prevent people from applying for asylum at all. His “Remain in Mexico” policy — which forced thousands back into Mexico to await hearings — was the centerpiece of this.

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But that was a humanitarian catastrophe. Many were exposed to violence and even kidnapping, or stranded in horrific refugee camp conditions for months.

“Trump’s policy created a much worse humanitarian and legal crisis than what we’re seeing now,” Dan Restrepo, a national security official under former president Barack Obama, told me. “It failed to meet our legal obligations and relegated tens of thousands to dangerous and inhumane conditions in Mexico.”

That was only a “solution” if you believe cruelty and fear should be used to deter people from applying for asylum. That’s the real Republican position: that those are legitimate tools to ensure that as few people apply and qualify for asylum as possible.

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But continuing that approach would be worse than the present in humanitarian and rule-of-law terms: Conditions spurring migrations will continue, and it would renege on our obligations under U.S. and international law.

The way to hold Biden accountable

The question is whether Biden can make the asylum system function better.

Homeland Security Secretary Alejandro Mayorkas just released a new statement outlining what this should look like: investing in Central American countries and creating new pathways for people to apply from afar, so they don’t come to the border; speeding up processing, so asylum claimants aren’t left in the interior and kids get transferred to guardians faster; and increasing capacity and ensuring more humane treatment at ORR facilities in the interim.

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People often argue that some migrants seek asylum for economic reasons, not due to persecution, or that migrants just want hearing dates so they can disappear into the interior.

But if so, a reformed system can deny claims where appropriate. Making the system work faster, and implementing non-detention-oriented ways to track migrants in our country, would address the second problem.

The real way to hold Biden accountable is to judge whether he meets those promises.

Yes, these problems are hard to solve. But that’s the point: What’s hard is actually trying to solve them. Calling this a “crisis” outside that context is absurd: It was a crisis before, too. What’s different is that Biden is attempting to tackle this crisis in a far better way than Trump did.

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