If Joe Biden wins in November, advocates who have spent the last four years suing President Donald Trump over his immigration policy are ready to hold the Democratic nominee accountable for his campaign promises.
Biden is positioning himself as former President Barack Obama’s natural successor, including on immigration policy. But he has sworn he won’t merely revert to the Obama-era status quo if elected.
“I was very proud to serve Barack, but even he acknowledges we can’t go back to what it was,” the former vice president said in June, pledging to send an immigration reform bill to Congress on day one of his presidency. “We have to go back and build back better. And so I have a program that is significantly different and builds upon where we left off and tries to undo the damage Trump has done.”
Immigration isn’t the only policy area in which Biden has made big progressive promises. But compared to health care or climate change, presidents have broad legal authority over immigration policy — as Trump has demonstrated by singlehandedly and fundamentally reshaping the immigration system during his first term, typically through executive action.
Merely undoing these changes will be a tall order if Biden claims victory in November. Advocates want to know how Biden plans to reign in the agencies tasked with immigration enforcement, which have become vessels of Trump’s nativist policies, and what he would do would respond if he faces a surge of migration at the southern border.
The pandemic could change the political calculus on immigration, which is no longer one of voters’ top priorities. In an era of mass unemployment, it might be difficult for Biden to advocate for policies vastly expanding immigration, as his immigration plan promises, when Americans fear they will be passed over for job opportunities, even though research shows that immigrants have essentially no effect on the unemployment rate.
But there are policy changes that Biden could undertake unilaterally and immediately upon assuming office: He could reverse some of Trump’s signature immigration policies, including the travel ban and his pandemic-related restrictions on legal immigration, and begin the immense task of reforming the immigration agencies by installing new leadership and revising their enforcement priorities.
Here are the top immigration priorities Biden would be under pressure to address during his first days in office:
1) Undo some of Trump’s biggest immigration policies
Trump has primarily pursued his agenda via executive fiat, meaning that Biden could easily reverse at least some policies as soon as he assumes office.
The presumptive Democratic nominee has already vowed to immediately end, among other policies, Trump’s travel ban citizens of 13 countries that his administration deems to be security threats; his practice of separating families in immigration detention; and restrictions on asylum including the Migrant Protection Protocols, under which Trump has sent tens of thousands of migrants back to Mexico to wait for their court hearings in the US.
Biden has also suggested that he would roll back the restrictions Trump recently imposed on foreign workers and immigrants applying for green cards. He has not yet said whether he would rescind Trump’s pandemic-related policies at the border that allow him to rapidly return asylum seekers to Mexico, nor the president’s recent memorandum excluding unauthorized immigrants from 2020 census population counts that will be used to draw new congressional districts in 2021. (The Biden campaign didn’t immediately respond to a request for comment.)
Other Trump-era regulations may be more difficult to roll back. That includes Trump’s so-called public charge rule, which imposes a wealth test on immigrants applying to enter the US, extend their visa, or convert their temporary immigration status into a green card.
The rule represents one of Trump’s harshest blows to legal immigration yet and has had the effect of deterring immigrants from seeking out much-needed public services amid the pandemic. But Biden can’t afford to rush through the process of repealing the complex, 217-page rule; he will likely have to use executive action to initially limit the effect of the rule before formally repealing it or else risk losing challenges in the courts, David Bier, a policy analyst for the libertarian Cato Institute, said.
“A hasty repeal could get hung up in the courts,” he said. “As much as the immigrant advocacy community has used the courts to their advantage, the opposite will be the case [under a Biden administration]. Especially with many Trump judges on the courts, it will be hard to find a favorable ear.”
2) Reform the immigration agencies and install new leadership
Unlike more progressive candidates in the primaries, Biden has said that he would reform the existing federal immigration agencies — the Department of…