Presidential Emergency and National Security Powers at the Southern Border: Potential for Abuse

On May 11, 2023, DHS and DOJ issued the Lawful Pathways Rule, "encouraging the use of lawful pathways and imposing a rebuttable presumption of asylum ineligibility on those who do not use them."

On June 4, 2024, President Biden issued a Proclamation on Securing the Border, which provided that "[t]here are more people around the world who are displaced from their homes today than at any point in time since World War II." Accordingly, "we have been experiencing substantial levels of migration" at our southern border. 

"Despite the strengthened consequences in place at our border through the Lawful Pathways rule and the related measures that have led to record returns and removals, encounter levels are exceeding our capacity to deliver those consequences in a timely manner due to the outdated laws and limited resources we have available."

This program will discuss these developments and the scope of the President's power to take extraordinary measures - without prior approval from Congress - to address migration and the potential for abuse of that power.