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Biden prepares to make up laws again, this time on immigration

OpinionBiden prepares to make up laws again, this time on immigration

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President Biden is expected to issue an executive order that will purport to confer some set of rights or privileges on people who are in the United States without benefit of an official invitation or who overstayed their original invitation. (This latter group includes people who received, for example, tourist or student visas but who have remained beyond the expiration of those visas.)

There are between 10 and 25 million such people of all types in the country. We do not know the number because millions have entered furtively across our borders. Some millions came in via the broken asylum system at lawful ports of entry. Some came in overland via the southern border and a much smaller number from across the northern border. Some have landed by boat on the coast of southern California and Florida. Some have come through tunnels. There are a score of ways to attempt entry. Most succeed. 

The New York Times on Sunday, in the course of “fact checking” former President Trump’s assertions on the scale of illegal immigration across the southern border, used numbers that point to a minimum baseline for uninvited crossings at the southern border of more than 10 million people under President Biden during Biden’s tenure in office. 

The former president uses a variety of numbers to make his case about the current president’s abdication of border control, but it is almost impossible to mount a good faith argument against this statement: More than 10 million people have crossed the southern border without invitation from the United States government while President Biden has been president. 


Now the new executive order is going to provide new privileges to some subset of all the people in the country without an adjudicated permission to be here, one granted by an authorized federal authority. This action will conflate two issues that ought to be kept apart. 

The first and most important issue is that the southern border appears to migrants heading here from all over the world to be wide open to anyone willing to make a difficult and dangerous trip. Millions have chosen to do so, and put their life savings and the savings of their families into the hands of cartels to “guide” the migrants to the U.S. in the hope of a better life. The accounts of the arduous nature of these journeys and the awful stories of the abused and the enslaved who make this risky trip are heart-rending. 


The border needs to be closed, as much for the migrants as for the security of America, and the first step towards that end is to finish a wall erected across all of its passable portions (more than half of the southern border is simple not passable or survivable and thus those miles don’t need a wall). The wall is more than a physical barrier. It is also the visible expression of the invisible resolve of our nation to secure the border. It is a necessary part of, but not a sufficient solution to, the crisis at the border. 

A wholly separate issue is “What to do with the millions in the country without legal status?” Some need to be deported, especially those with criminal backgrounds or who have committed crimes in the United States. Those working for foreign intelligence agencies of course need to go. And anyone with ties to extremist groups such as the eight Tajiks arrested this month need to be either imprisoned or deported immediately. 

migrants processed at the border

SAN DIEGO, CA – JUNE 13: Migrants are processed by the U.S. Border Patrol near the Jacumba Hot Springs after crossing the US-Mexico border on June 13, 2024 in San Diego, California.  (Qian Weizhong/VCG via Getty Images)

There are other groups that deserve some sort of “regularization.” That does not mean citizenship. To have entered the country without invitation is to have “jumped the line” on the millions awaiting legal entry. Even if millions are to be “regularized” via a constitutional process, it must still be done via a legal process that does not include a “path to citizenship.” I suspect President Biden will again ignore the Constitution and the laws passed by Congress as he breaks both via an executive order issued now to search for votes in the fall, done at this late date to avoid the inevitable court review and reversal. Presidents cannot unilaterally amend the immigration laws


But whatever Biden does and whatever survives court scrutiny (very little I suspect) legacy media has to separate the urgent from the merely important. It is urgently necessary to close the border. It is urgently necessary to imprison and/or deport the criminals and extremists. By contrast, is merely important to approach regularization with compassion, and with the Constitution as a guide. The president has no right to decree anything in this area. If Biden does so, Trump will and should blast him for yet another exercise in the lawlessness that has marked the Biden years. 

Hugh Hewitt is host of “The Hugh Hewitt Show,” heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Brett Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990.  Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.



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