Border Chaos Could be Ended with the Stroke of a Pen

April 18, 2024

By Matt O’Brien

The White House is once again engaging in acts of political theater in order to avoid doing anything to secure our nation’s southern border. Recently, the New York Post, Reuters and Axios all ran articles stating that the administration is examining whether or not the president has the power to close the border to foreign asylum-seekers.

This is an absurd claim. The vast majority of the people currently appearing at the border are completely ineligible for admission. Nevertheless, the White House is attempting to hide behind a fig leaf by claiming that it must admit any foreign national who shows up at the border and claims asylum. But this is patently false.

To begin with, despite specious claims to the contrary, neither the 1951 U.N. Refugee Convention, its 1967 Protocol, nor customary international law, require states to admit foreign nationals for the purpose of applying for asylum. As one legal scholar put it, “There is no right to asylum, and, therefore, no state is under any obligation to admit asylum seekers into their territories.”

As a matter of domestic law, neither the Immigration and Nationality Act, nor any other U.S. statute, imposes any type of obligation on the United States to let in asylum seekers. In fact, asylum is a discretionary form of relief. Even if an individual succeeds in establishing that he or she has been a victim of persecution, granting asylum is not obligatory if such a grant is not in the best interests of the United States.

Moreover, as a sovereign nation, the United States is under no obligation to admit any foreign nationals for any reason. This has been expressly affirmed in at least three decisions by the Supreme Court.

In 1892, in Ekiu v. United States, the Court very clearly stated, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”

A little less than century later, in the 1972 case Kleindienst v. Mandel, the High Court opined that “unadmitted and nonresident” aliens have “no constitutional right of entry to this country as a nonimmigrant or otherwise.”

More recently, in Trump v. Hawaii, the Supreme Court specifically addressed the president’s power to close the border, conferred pursuant to 8 U.S.C. §1182(f ). According to the Court, the president has clear, unequivocal authority to: 1) to suspend the entry of all aliens, or any class of aliens; 2) by imposing any restrictions he may deem to be appropriate; 3) for such period as he shall deem necessary; 4) whenever he finds, in his discretion, that the entry of such aliens would be detrimental to the national interest.

And Trump v. Hawaii was not the first time this issue came up. In 1993, in Sale v. Haitian Refugee Centers, the Supreme Court found that 8 U.S.C. § 1182(f) permitted the president to order a naval blockade of Haiti, in order to prevent illegal aliens from entering the United States.

In fact, according to the Congressional Research Service, every president since 1981 has invoked § 1182(f) to exclude one or more broad classes of aliens when their admission was not in the best of the United States. Between December 31, 1980 and February 15, 2024 that resulted in no fewer than 90 separate proclamations imposing restrictions upon or suspending the entry of foreign nationals. At least 16 of those 90 invocations were made by the current occupant of the White House.

Frankly, it would be utterly impossible for the President not to be aware of this. So, what gives? Why is the White House lying to the American public? This administration is committed to a globalist anti-borders agenda. It has no desire to stop the chaos along our border with Mexico. And it wants to deceive the public in order to divert attention from its deliberate misfeasance.

However, that kind of political sleight of hand inevitably comes with consequences. Because the Executive Branch has flung open our borders, we now have record numbers of fentanyl deaths. A nationwide human trafficking crisis has erupted. Innocent Americans like Laken Riley are being brutally slaughtered at the hands of criminal illegal aliens. And all of this could be eliminated with a stroke of the President’s pen.

So, everyone who cares about secure borders and American sovereignty should be asking, when will the President use the authority that everyone but he seems to know he has to stop the chaos that has spread from Rio Grande to the heartland?

Matt O’Brien is the Director of Investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.

Also published at The Washington Times, April 18, 2024.