Jurisprudence

How Biden Plans to Undo Trump’s Nativist Agenda

In a little-noticed announcement, the former vice president committed to a more ambitious refugee policy than existed under Obama.

Uniformed CBP officers stand beside asylum-seekers in a covered walkway
U.S. Customs and Border Protection agents escort asylum applicants to the U.S. side of the Paso del Norte International Bridge in Ciudad Juárez, Mexico, on April 1. Paul Ratje/AFP via Getty Images

It’s not even a matter of doubt at this point that—as Columbia Law School’s Elora Mukherjee put it last week—America is now closed. Despite the surprise of the Supreme Court’s ruling on DACA earlier this month, the vast majority of Donald Trump’s yearslong campaign to close the borders to immigrants, asylum-seekers, refugees, and guest workers has proven almost unerringly successful. Last week’s executive order limiting immigration to the United States through the end of 2020, plus the Supreme Court’s ruling on expedited deportations, plus the D.C. Circuit Court of Appeals authorization of the administration’s expansion of “expedited removal” to people nationwide are all part of a massive, largely successful effort to keep certain types of people out, and the doors locked, in ways that transcend daily news headlines.

Undoing this damage will be a heavy lift for whoever next occupies the Oval Office, but there is some cause for optimism. Last Sunday, on World Refugee Day, Joe Biden laid out how he would reverse Trump’s assault by committing to several essential immigration actions: Having pledged that if he is elected he will restore “America’s historic role as leader in resettlement and defending the rights of refugees everywhere,” Biden had set specific targets that will increase refugee resettlement in the United States. His plan would aim to admit 125,000 refugees to the U.S. (that’s up from a ceiling of 18,000 under Trump, and more than Obama admitted). In his announcement last week, he added a new pledge: to work with Congress to establish a minimum admissions number of at least 95,000 refugees annually. In addition to those actions, Biden has promised to

pursue policies that increase opportunities for faith and local communities to sponsor refugee resettlement. I will make more channels, such as higher education visas, available to those seeking safety. I will repeal the Muslim ban—and other discriminatory bans based on ethnicity and nationality—and restore asylum laws, including ending the horrific practice of separating families at our border. I will work with our allies and partners to stand against China’s assault on Hong Kong’s freedoms and mass detention and repression of Uighurs and other ethnic minorities and support a pathway for those persecuted to find safe haven in the United States and other nations.

The proposal mirrors the plan set forth in the Refugee Protection Act of 2019, now pending a vote in the House of Representatives. It signals that Biden isn’t just running against Trump’s anti-Muslim, anti-refugee, anti-immigrant dog whistles, but is also committing energy and, more importantly, resources to fulfilling the United States’ reputation as a nation that welcomes those in need of shelter, and also to making the U.S. government a central player in solving a global refugee crisis that has only grown more exigent as a result of COVID-19. It signals that Biden understands that solving the refugee crisis is both a hefty administrative lift and a moral and democratic imperative. Also notable is that Biden isn’t seeking to simply return to Obama-era policies, but is going further, faster, in a tacit statement that Barack Obama’s immigration legacy was not, in fact, anything to celebrate.

Should Biden win the White House in 2020, he will face an administrative state that has been hollowed out from within. The government agencies tasked with refugee resettlement will need to be rebuilt to do the work of meeting the 125,000 refugee admission target, and as we learned in the Obama era, even with a Democrat in the White House, refugees have been a constituency with little power or pull. But the commitment to work with Congress to create a new floor on refugee admissions is the truly radical aspect of Biden’s new pledge. It would mean that whoever takes office in future could not do what Trump and Stephen Miller did and set a future ceiling at 18,000 or even lower, because there would be legislation in place to preclude it. If nothing else, these past four years have revealed what kind of statutory protections refugees will require to prevent another Trump-like presidency from closing America’s doors again.

As is the case in so many contexts, rebuilding the refugee resettlement program so that the United States can once again meet its global commitments will require a huge rededication to the proposition that the wealthiest and most powerful country in the world is only enriched by its status as a safe haven for those in need of a safe haven. Credit where it is due: Biden is showing that the only ethical response to immigration and asylum policies by dog whistle and cruelty is to instate policies and programs that welcome refugees and immigrants—the people who help make America great.