Biden vs. Johnson border standoff: Experts split on who has the authority to solve crisis

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As the White House negotiates a deal on border security legislation with the Democrat-held Senate, it’s having a standoff with the House of Representatives over who has the ability to solve the migrant crisis in the first place. 

Signaling he’s ready to reject the bipartisan compromise, which is still being worked on, Speaker Mike Johnson, R-La., has told President Biden on several occasions that the president has the unilateral authority to enforce existing border and immigration policy. 

Biden officials, however, argue that the legislative route through Congress will afford a more comprehensive and permanent solution.

Fox News Digital spoke with several experts who were similarly split over where the real power to fix the crisis lies. Those who believed it was on Congress cited its constitutional role in setting U.S. policy.

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House Speaker Mike Johnson said the border deal bill being negotiated between President Biden and the Senate is ‘dead on arrival’ in the House. (Getty Images)

“U.S. immigration law is clearly a federal matter. Both Congress and the Executive Branch have roles to play,” said Erin B. Corcoran, executive director of the Kroc Institute for International Peace Studies at the University of Notre Dame.

“However, any permanent changes to federal laws or funding for immigration enforcement is the responsibility of Congress. Our immigration system is in need of significant congressional reform, and such reform must come from Congress.”

Corcoran pointed out that Congress has control over issues of legal permanent status and citizenship, and the president acts on authorities granted by Congress.

Aaron Reichlin-Melnick, policy director of the American Immigration Council, similarly argued the president could not unilaterally cut off immigration at the border.

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“The reality is that without Congress providing new authorities and a massive increase in funding, no president can either detain all migrants crossing or return them across the border,” he said. “Even if Congress did provide those authorities, diplomatic realities can prevent their use. For example, if Mexico declined to accept individuals expelled from the United States, then an expulsion authority would have little impact.”

Josh Blackman, professor of law at the South Texas College of Law Houston, argued it was a mixture of efforts by both branches.

“The president could enforce the existing laws more aggressively to deal with the situation at the border. Permanent legislation would likely be an improvement,” he said.

Texas National Guard soldiers wait near the boat ramp where law enforcement enter the Rio Grande at Shelby Park on January 26, 2024, in Eagle Pass, Texas (Michael Gonzalez/Getty Images)

On the other side of the conversation, those who believe Biden has the power to act cited his past executive actions and policy decisions on immigration and other matters.

“There is no question that President Biden can do more on the border and that his policies, and past statements, have fueled this crisis,” Fox News contributor and Georgetown University law professor Jonathan Turley said. “On issues like student loan forgiveness, the administration has shown endless creativity and energy in seeking its ends… Immediately upon taking office, President Biden stopped measures and policies that were designed to stem the flow of unlawful immigrants.”

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Though Turley added, “A border bill would certainly enhance such efforts with added immigration judges, border agents, and barriers.”

Heritage Foundation senior legal fellow Hans von Spakovsky said, “The president has all of the power and authority he needs already under current immigration law to secure the border. It is his deliberate and intentional policies of refusing to enforce those laws that are causing the current crisis.”

Fox News contributor Jonathan Turley

Legal scholar and Fox News contributor Jonathan Turley said it was on the White House to enforce existing border policy. (Fox News)

“That includes unlawfully giving mass parole to illegal aliens entering the country instead of immediately expelling them; reinstating the ‘catch and release’ policy that was ended by the Trump administration; and terminating the ‘Remain in Mexico’ policy that was helping to prevent fraudulent asylum claims,” he said.

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The White House and speaker’s office traded barbs over the issue as recently as Monday. 

Biden Press Secretary Karine Jean-Pierre released a memo saying, “If Speaker Johnson continues to believe — as President Biden and Republicans and Democrats in Congress do — that we have an imperative to act immediately on the border, he should give this administration the authority and funding we’re requesting to secure the border.”

Johnson’s spokesman told Fox News Digital in response, “With the stroke of a pen, he could begin by restoring Remain in Mexico, ending catch and release, reforming asylum, and parole standards. His refusal places our national sovereignty at stake.”

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