Biden Border Woes Drag Into 2023 as Supreme Court Clouds Migrant Policy

2023 will likely see more attempted border crossings, burdening an already overwhelmed enforcement system — and with the president’s migration policies facing added legal uncertainty

Migrants are apprehended by the US National Guard after crossing the US and Mexico border through the Rio Grande into El Paso, Texas, seen from Ciudad Juarez, Chihuahua state, Mexico, on Tuesday, Dec. 20, 2022. Chief Justice John Roberts temporarily blocked the scheduled ending of pandemic-era border restrictions while the US Supreme Court considers a bid by Republican state officials to keep the rules in place during a legal fight. Photographer: Eric Thayer/Bloomberg
By Jordan Fabian, Ellen M. Gilmer and Akayla Gardner
December 29, 2022 | 11:56 AM

Bloomberg — President Joe Biden’s struggle to manage a historic influx of migrants will stretch into his third year in office, even after the Supreme Court kept in place pandemic-era border controls.

2023 will likely see more attempted border crossings, burdening an already overwhelmed enforcement system — and with the president’s migration policies facing added legal uncertainty.

The president said he would obey Tuesday’s Supreme Court decision delaying the end of the migration restrictions known as Title 42, which allowed him and former President Donald Trump to rapidly expel migrants more than 2 million times since early 2020.

But the court’s decision to keep Title 42 in place while litigation proceeds may just delay the inevitable. The policy is a public-health measure being used to curb migration, and experts expect it will eventually be lifted. In the meantime, thousands of migrants have gathered in Mexico waiting for it to drop, complicating the border situation.


In October and November, authorities made more than 200,000 migrant apprehensions at the US-Mexico border each month, according to government data. Those are larger numbers than the corresponding months in fiscal 2022, which saw a record of more than 2.2 million encounters.

Biden had sought to end the restrictions, arguing Title 42 is ineffective in deterring crossings and only congressional action can repair the system. Without significant funding and changes to US law, officials and immigration advocates say problems — including an overtaxed Border Patrol, slow visa processing and labor shortages — will persist.

But end-of-year congressional talks on an immigration proposal collapsed, the latest failure to modernize laws unchanged for more than 30 years, and Republicans, who will take control of the House in January, plan to use immigration as a political battering ram ahead of the 2024 election.


House Republican leader Kevin McCarthy, who is positioned to become Speaker, has called on Homeland Security Secretary Alejandro Mayorkas to resign over his handling of the border.

“For better or for worse, in the eyes of the American public, presidents are judged by what happens at the border,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center.

‘Major Disappointment’

Despite the Republican opposition to Biden’s plans, some activists and allies say the president and Democrats have not put enough political capital behind immigration, compared to measures on infrastructure, climate and health care that became law.

“We haven’t seen the same sort of attention and prioritization when it comes to achieving legislative progress on the immigration front, and that’s been a major disappointment in the last few years,” said Jorge Loweree, managing director of programs and strategy at the American Immigration Council.


Biden rarely spoke about immigration on the stump in 2022, and his senior staff doesn’t include an adviser whose primary focus is immigration policy. Biden did send an ambitious immigration overhaul to Congress shortly after taking office, but it stalled after passing the House. Democrats also failed to secure immigration provisions in a budget reconciliation package.

“If Democrats were to lean-in and talk about their strategy and be highly aggressive on Republican accountability and extremism, it will help present a contrast for voters,” said Tyler Moran, a former senior Biden adviser on migration. “If Democrats are silent, Republicans are able to fill the void and define the issue.”

White House Press Secretary Karine Jean-Pierre said after the Supreme Court ruling that Congress should take the opportunity to pass new immigration laws.


“Today’s order gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested,” Jean-Pierre said in a statement.

Congress provided US Customs and Border Protection with $16.4 billion in its year-end funding bill, an increase from last fiscal year, including $1.6 billion to address higher numbers of migrant encounters at the border. The measure also funds 300 additional Border Patrol agents.

But that is significantly less than the $3.5 billion the White House requested to address the situation at the border.

Gridlock in Congress

Before the court’s ruling, El Paso, Texas Mayor Oscar Leeser said as many as 20,000 migrants were waiting in neighboring Ciudad Juarez, Mexico, for border restrictions to end, citing estimates from US and Mexican authorities.


The migrants could be waiting months for Title 42′s fate to be decided. The justices plan to hear arguments in late February or early March on Republican states’ bid to intervene in defense of the policy, with a decision possibly weeks or months later.

The Department of Homeland Security said individuals who try to enter unlawfully will continue to be expelled to Mexico or their home country.

But immigrant-rights advocates say the rapid expulsions make the situation worse, encouraging repeat crossings — all while denying migrants their legal right to seek asylum.


Despite those concerns, immigration watchers are pessimistic about the prospects for congressional action

“The question is: Can there be a congressional legislation next year in the 118th Congress on immigration? And the answer is no,” said Mark Krikorian, executive director of the Center for Immigration Studies, which favors lower immigration levels.

Arizona Independent Senator Kyrsten Sinema plans to push again on an immigration framework she crafted with North Carolina Republican Senator Thom Tillis, which collapsed during the lame-duck session.


Congressional inaction could bring more pressure from liberal allies for Biden to take executive action.

New Mexico Democratic Senator Ben Ray Luján said Biden has done the best he can with the hand he’s been dealt — congressional gridlock, adverse court decisions and Trump-era policies that cut funding.

Yet he said Biden “can and must” put forth executive actions to protect immigrant families.


The last major push to overhaul immigration occurred in 2013 when the Senate approved a citizenship path for undocumented immigrants already in the US, while bolstering border security and visa requirements. The bill, however, never received a vote in the Republican-controlled House.

GOP opposition to such a deal only hardened under Trump.

“To simplistically say that this is happening because of Biden is just ridiculous,” said Moran.


--With assistance from Brendan Case.