Charles Lane explores legal issues surrounding President Donald Trump’s approach toward southern border policy.
Migrant crossings at the U.S.-Mexico border surged into the millions during President Joe Biden’s first three years in office, but they have nearly ceased in the last 18 months. President Trump says it’s all because of the crackdown on asylum seekers he launched by executive proclamation on his first day in office. “As it turned out, we didn’t need legislation,” he boasted in December. “We just needed a new president.”
In contrast to his sometimes chaotic and violent deportation drive, opposition to Trump’s border policy has been muted. You can’t argue with success: encounters between the border patrol and migrants peaked at 250,000 in December 2023; by December 2024, the number was a still-significant 47,000. Under Trump it has plunged further, to well below 10,000 a month—the lowest rate since the early 1960s.
There’s just one little problem: Trump’s policy might not be legal. In fact, federal courts have repeatedly ruled that it is not, finding that the president had no authority under current immigration statutes to issue his proclamation. According to these judges, he did, in fact, need new legislation.
This is potentially a very big deal, though the rulings have drawn little media coverage—perhaps because they have been stayed pending the Trump administration’s appeals. But now everyone needs to start paying attention: Trump’s Solicitor General, John D. Sauer, has asked the Supreme Court to take up the case and salvage what he called “the Administration’s single most effective policy in resolving a border crisis.”
The justices have no risk-free option, legally or politically. They can uphold the lower courts’ rulings that the policy was illegal, possibly triggering a new rush of migrants to the border—or even defiance from a furious Trump. Or the justices can ratify Trump’s policy and its bold assertion of executive authority. This would not only truncate the United States’ commitment to asylum but warp the balance of power between the president and Congress.
The post Exploring the legality of Trump’s successful border policy appeared first on John Locke Foundation.
