Joe Biden’s new border order already hit with legal threat

The American Civil Liberties Union (ACLU) is among the first organizations vowing to legally challenge President Joe Biden‘s new executive order pertaining to migrant surges at the U.S.-Mexico border.

“We intend to challenge this order in court,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement shared with Newsweek. “It was illegal when Trump did it, and it is no less illegal now.”

On Tuesday and as expected, Biden announced the suspension of asylum processing for migrants crossing the southern border between ports of entry when numbers exceed 2,500 per day, reopening when daily numbers fall below 1,500. The order comes as immigration remains a central issue in the November election.

The president is enforcing authority under Immigration and Nationality Act sections 212(f) and 215(a), with the White House saying the order is “not permanent” and will be discontinued when migrant surges decrease to an unspecified amount in which federal authorities are better able to safely and effectively manage border operations.

The order also exempts undocumented children from penalty, which the campaign of former President Donald Trump claims will “give a green light to child traffickers and sex traffickers.”

Deirdre Schifeling, chief political and advocacy officer at the ACLU, said the executive border “will put thousands of lives at risk.”

“They will not meet the needs at the border, nor will they fix our broken immigration system,” she said.

Immigration lawyer Rosanna Berardi told Newsweek via email that she expects “significant legal challenges” to the order as both parties politically maneuver on the overall issue.

“The suspension of key protections for asylum seekers and the imposition of thresholds for border closures marks a drastic departure from longstanding practices,” Berardi said. “While the urgency of addressing the escalating crisis at the border is undeniable, this approach represents a significant policy shift.

“The legal foundation for this order lies in Immigration and Nationality Act 212(f), but its enforcement will undoubtedly be contested in court. A similar action under the Trump administration was legally blocked, and this executive order will likely face the same fate.”

Biden’s executive action is being compared to Trump-era policies like Title 42 that facilitated the so-called “travel ban” during the COVID-19 pandemic. On Tuesday morning, the Trump campaign said its political rival’s border intentions are not aimed to better border security but is a path toward amnesty.

Other organizations also admonished the Biden administration.

“This executive action, which revives unlawful Trump-era restrictions, will eviscerate our asylum system,” New York City-based Legal Aid Society told Newsweek. “It deprives migrants who are fleeing persecution in their home countries access to safe harbor and due process.

“What we need is humane and comprehensive immigration reform, not short-sighted policies which will only create more suffering and confusion.”

The Las Americas Immigrant Advocacy Center, headquartered in El Paso, Texas, says it stands in “complete opposition” with the administration.

“Today’s decision clearly illustrates that this administration is ignoring lessons from the failed deterrence measures put in place by its predecessors,” center officials told Newsweek in a statement. “Being strong on immigration doesn’t require an assault on asylum seekers or cruelty toward people seeking protection at our southern border.

“The Biden Administration doesn’t need to rely on harsh deterrence tactics like Trump’s failed Muslim travel ban and Latino Ban, which were also created to close the doors on refugees and send families back to the violent conditions they fought to escape. Together, these policies represent a concerning trend of political manipulation and irresponsible immigration practices.”

The order is being criticized not just by Republican lawmakers but also some Democrats.

U.S. Senator Alex Padilla of California, a Democrat and chair of the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, said in a statement shared with Newsweek that reduced backlogs, lawful pathways to migration and addressing the root causes of migration should be Biden’s focus.

“By reviving Trump’s asylum ban, President Biden has undermined American values and abandoned our nation’s obligations to provide people fleeing persecution, violence, and authoritarianism with an opportunity to seek refuge in the U.S.,” Padilla said.

He added: “This asylum ban will fail to address the challenges at our border, just as it did under the Trump Administration. It will lead to people with legitimate asylum claims being prevented from seeking safety and returned to harm.”

Congressional Progressive Caucus Chair Pramila Jayapal, a Democratic representative from Washington, also compared the order to Trump-era policies.

“What’s happening at the border cannot be solved by enforcement actions only,” Jayapal told reporters on Capitol Hill, according to Fox News‘ America Reports. “What it really needs is a modernization of the entire legal immigration system, and legal pathways and resources to process people.”

She added: “I’m disappointed that the president has sort of gone into the same frame as Donald Trump, at a time when we need to make a distinction between Donald Trump and Joe Biden.”