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Murphy: Biden order on immigration might not pass legal muster

Sen. Chris Murphy (D-CT) speaks during a news conference at the U.S. Capitol Building on May 08, 2024 in Washington, DC. During the news conference, Senate Democrats spoke on a range of topics pertaining to border security and negotiations for the Federal Aviation Administration reauthorization.
Anna Moneymaker
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Sen. Chris Murphy (D-CT) speaks during a news conference at the U.S. Capitol Building on May 08, 2024 in Washington, DC. During the news conference, Senate Democrats spoke on a range of topics pertaining to border security and negotiations for the Federal Aviation Administration reauthorization.

President Joe Biden announced an executive order Tuesday that restricts asylum claims when there is a surge of migrant crossings at the U.S.-Mexico border, seeking to reclaim a contentious issue that has animated the presidential race.

The unilateral move by Biden was met with bipartisan criticism — including from immigration groups nationally and in Connecticut — and some praise. U.S. Sen. Chris Murphy, D-Conn., who was the lead Democratic negotiator on the border deal, argued that congressional Republicans put Biden in this situation to act alone, but he believes the executive order is unlikely to hold up legally.

The presidential authority will suspend crossings at the southern border if the 7-day average surpasses 2,500 encounters a day. Migrants seeking to enter the U.S. through the border illegally at that time will not be able to seek asylum — with some exceptions for unaccompanied minors — but will still be able to do so at ports of entry.

That cap is much lower than what was included in Murphy’s bill, which would have prohibited entry into the U.S. if encounters at the border reached 5,000 per day over a 7-day average or if encounters surpassed 8,500 in a single day.

Biden’s executive order has already been threatened with legal action, with the American Civil Liberties Union saying it intends to sue and comparing it to action taken by his predecessor, former President Donald Trump.

“I am skeptical the courts will conclude that is a proper executive power. I’m sympathetic to the position Republicans have put the administration in,” Murphy told reporters Tuesday on Capitol Hill, adding that the president “bent over backwards to try to do a deal with Republicans.”

“Biden is left only with the option of executive action. I doubt that this is going to pass judicial muster. It’s a pretty extraordinary exercise of executive power,” he continued. “My belief from the beginning has been that you need legislation in order to shut down the border absent a public health emergency.”

When asked about the merits of the bill before Tuesday’s White House announcement and if the cap went too far compared to his own legislation, Murphy said he had not gone through the entirety of the order to know “whether they’ve created a viable structure or not.” He argued that the framework and push for more resources in the border deal was “still the best path forward.”

Murphy’s bill would have required the secretary of the Department of Homeland Security to prohibit entry into the U.S. if encounters at the border reached a certain level, raised the standard of “credible fear of persecution” when claiming asylum, limited presidential parole authority, issued more work permits and visas and provided legal counsel for unaccompanied minors under 13 during removal proceedings.

During negotiations earlier this year, the legislation eventually got buy-in from enough Republicans to at least get it through the U.S. Senate. But as it got close to a vote, Trump came out against the bill, and it was ultimately blocked. Murphy reintroduced the bill last month, but it failed again in a procedural vote with more senators voting against it then when it initially came up in February.

“It’s not terribly likely that anything Biden is talking about doing can work without additional resources, and Republicans are unwilling to provide the resources to fix the problem, because they don’t want to fix the problem,” he said.

Murphy was invited to attend the White House event on Tuesday afternoon along with other congressional colleagues, but said he “couldn’t make it work on my schedule today.” He was in Connecticut the previous day for Biden’s campaign fundraiser in Greenwich.

Biden echoed a similar sentiment — that he still hopes Congress will address the issue and tackle immigration reform in a substantive way. He repeatedly blamed Republicans for preventing the bipartisan bill from moving forward and sought to make distinctions with Trump.

And he addressed his critics head-on who said his action is too restrictive.

“Be patient,” Biden said. “The good will of the American people are wearing thin right now. … Let’s fix the problem and stop fighting about it. Congressional Republicans should do their part.”

But Biden has garnered criticism from both the left and the right. Democratic critics argue he is repeating bad policy from the Trump administration, while Republicans push back that he waited too long to do something on immigration.

In Connecticut, the same critics of the border deal are taking issue with Biden’s executive order.

Constanza Segovia, who is a co-founder and lead organizer of Hartford Deportation Defense, argued the president’s new authority will not stop migrants from coming to the border who are fleeing and seeking refuge. She was part of a coalition of immigrant rights organizations in Connecticut that pushed back against the Murphy-led border bill earlier this year.

“Capping the entries at the border is not going to stop people from coming. It’s also caving into the demands and rhetoric that the right is setting up. I would hope that we would have Democratic leadership that would be bolder in their stance,” Segovia said.

Activists like Segovia have been pushing for Congress to take a comprehensive approach to immigration. They have been disappointed that recent efforts on this issue have not included protections and pathways to citizenship for Dreamers, who are individuals brought into the country illegally as children.

“In my opinion, we would like to see policy proposals and policy solutions take into account the human beings involved,” Segovia said. “I would argue that a bolder vision would activate a lot of the Democratic base that’s very invested in human rights here in the U.S. but also internationally.”

Republicans in Washington and Connecticut also pushed back on Biden’s order. George Logan, who is running again to unseat U.S. Rep. Jahana Hayes, D-5th District, said the move was “too little, too late,” posting on X, the platform formerly known as Twitter, that Democrats waited to address the issue until an election year. He said the U.S. Senate should pass the House GOP’s border proposal, but the bill faces tough headwinds in the upper chamber, and Biden has threatened to veto it.

Hayes replied to the post saying that she would vote for immigration legislation, noting that Trump has opposed legislative efforts including the bipartisan border bill.

Connecticut Democrats like Gov. Ned Lamont, meanwhile, commended the president for taking up the issue. And they all agree Congress needs to revisit it.

“I applaud President Biden for his leadership and for taking action to address the problems we are seeing at the border. It is critical that we strengthen border security and limit unlawful border crossings,” U.S. Rep. Rosa DeLauro, D-3rd District, said. “President Biden and Democrats are working to secure our border while expanding safe, lawful pathways for migration.”

The Connecticut Mirror/Connecticut Public Radio federal policy reporter position is made possible, in part, by funding from the Robert and Margaret Patricelli Family Foundation.

This story was originally published by the Connecticut Mirror.

Lisa Hagen is CT Public and CT Mirror’s shared Federal Policy Reporter. Based in Washington, D.C., she focuses on the impact of federal policy in Connecticut and covers the state’s congressional delegation. Lisa previously covered national politics and campaigns for U.S. News & World Report, The Hill and National Journal’s Hotline.

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