No, the president can’t completely close the border via executive order

Former President Donald Trump and some federal lawmakers are calling on President Joe Biden to close the southern border. This comes as his administration faces mounting criticism over its response to an influx of migrants in the U.S.

Biden has previously said he’d only have the authority to shut down the border if Congress passed a new law. But Trump and others have argued that presidents already have the authority to close the border. 

During remarks at his Mar-a-Lago resort in Palm Beach, Florida, on March 4, Trump told Biden to “close the borders now.” Rep. Tom Tiffany (R-Wis.) echoed this statement, writing in a post on the same day that Biden is able to “close the border with executive authority.”

Multiple VERIFY readers, including Debbie and James, reached out to us via text to ask if that’s true.

THE QUESTION

Can a president completely shut down the border with an executive order?

THE SOURCES

• 8 U.S.C. 1158
• Immigration and Nationality Act
• Congressional Research Service (CRS)
• Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School
• Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute

THE ANSWER

No, a president cannot completely shut down the border with an executive order. A full border closure would violate federal laws granting people the right to seek asylum. 

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WHAT WE FOUND

It’s not possible for Biden or any other president to completely shut down the border with an executive order. That’s because doing so would violate existing federal laws, including one that gives people the right to seek asylum. 

However, a president can issue an executive order to restrict certain groups of people from entering the U.S, as former President Donald Trump and others have done in the past. 

Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, explained to VERIFY that the idea of a completely closed border is not realistic. 

“I think maybe people imagine that the border would be fully closed – that nobody could come across unless they had a legal visa and were coming to a legal crossing point. In reality, that’s not possible,” Gelatt said.

Some media outlets have reported that the Biden administration is considering issuing an executive order that could prevent people who cross illegally into the U.S. from claiming asylum. Such a move would greatly restrict the flow of migrants but it wouldn’t close the border to everyone, since people could still come into the U.S. legally at a port of entry. 

Regardless, such a move would almost certainly face significant legal challenges. That’s because a federal law currently says anybody who’s on U.S. soil has the right to ask for asylum, whether they enter the U.S. legally or cross the border without authorization. 

The U.S. also has laws that “offer people protection against being returned to a place where they would face torture or other harms,” Gelatt explained. 

Some people, including House Speaker Mike Johnson, have cited a 1952 law called the Immigration and Nationality Act when claiming Biden has the authority to shut down the border via executive action. 

That federal law does give the president broad powers to suspend the entry of certain noncitizens who are “detrimental to the interests of the United States.” But that “doesn’t mean [the president] can just shut the border,” Stepehen Yale-Loehr, professor of immigration law practice at Cornell Law School, said. 

Presidential administrations have invoked this authority in different contexts, to varying degrees of success, the Congressional Research Service explains.

Former President Donald Trump leaned on it multiple times while in office, but he was unable to use the authority to ban certain people from seeking asylum. He never used the provision to fully close the border, either. 

Trump used the authority in 2017 to implement a ban on travelers from mostly Muslim countries. Lower courts ruled that the policy was out of bounds and blocked part of it from being enforced, but the Supreme Court ultimately allowed the travel ban to go forward.

Trump also tried to ban asylum claims for people who cross the southern border without authorization. But courts quickly blocked that provision “because of asylum laws in the United States that say people can ask for protection,” Gelatt said. 

Both Gelatt and Yale-Loehr agree that the Biden administration would likely face swift legal action if it tries to implement any measures that amount to effectively shutting down the border. 

“We’ve already seen litigation of the Biden administration’s higher asylum standard that now applies between ports of entry. We saw litigation of basically every immigration move that President Biden has done, and the same thing under President Trump as well,” Gelatt said. 

The Associated Press contributed to this report.

This story is also available in Spanish / Lee este artículo también en español: No, el presidente no puede cerrar la frontera completamente por orden ejecutiva