Explainer-US border security: What could Biden, Congress and Texas do?

By Ted Hesson

WASHINGTON (Reuters) -U.S. President Joe Biden is weighing whether he has the legal authority to block migrants at the U.S.-Mexico border since Republicans have refused to pass bipartisan legislation that would give him such power, the Democratic president said in an interview broadcast on Tuesday.

Republicans say Biden should restore the restrictive policies of Republican former President Donald Trump, who will face Biden in the November election, and that the Biden-backed legislation would not sufficiently stem illegal crossings. Some of Trump's hardline immigration measures were blocked by courts.

At the same time, the Republican-led state of Texas is trying to implement its own immigration law allowing Texas authorities to arrest and detain people suspected of being in the country illegally but that is facing a legal challenge.

WHO IS RESPONSIBLE FOR US BORDER SECURITY?

Both Biden and Congress could take steps to address border crossings as immigration has become a top concern for Americans in the run-up to U.S. elections on Nov. 5 where Biden is seeking a second term.

The U.S. Congress is responsible for making federal immigration laws although partisan gridlock has meant there has not been a major reform bill passed in decades.

The executive branch of government headed by the president is responsible for enforcement and can create regulations and policies that implement the laws. However, executive actions introduced by both Republican and Democratic presidents have faced legal challenges.

U.S. states historically have not been able to create and enforce their own immigration laws, but the Republican-controlled state of Texas is trying to do that.

Texas passed a law known as Senate Bill 4 last year that would allow Texas authorities to arrest and prosecute people suspected of being in the country illegally.

The law was set to go into effect in March but the U.S. Department of Justice and advocacy groups sued to block its implementation, arguing that it conflicts with federal law.

A U.S. district court judge in Texas blocked the law from taking effect and the 5th U.S. Circuit Court of Appeals is currently considering whether it should remain blocked.

WHY IS BIDEN BLAMING REPUBLICANS?

The White House says Congress should approve more funding and enforcement authorities to deal with border crossings and that Republicans have refused for political reasons.

Since October 2023, Biden has called on Congress to approve $13.6 billion in additional border management funds that would pay for 1,300 additional border patrol agents, 1,600 new asylum officers and 375 new judge teams.

The White House also backed a bipartisan bill in the U.S. Senate that would make it harder to claim asylum at the border and create a new authority to send migrants and asylum seekers back to Mexico if crossings reach certain levels.

But Republicans have opposed both the additional funds and Senate border bill, saying Biden should first restore restrictive Trump policies and end new legal entry programs that Republicans allege are an abuse of the federal government's parole authority.

Republicans have criticized the Senate bill for setting a threshold of a weekly average of 5,000 migrant encounters per day before requiring the use of an emergency authority to turn away migrants, saying it is too permissive.

The Biden administration says Republicans caved to Trump after he came out in opposition to the bipartisan Senate bill.

WHAT ACTIONS IS BIDEN CONSIDERING WITHOUT CONGRESS?

Biden said in an April 9 interview with Univision that he and his administration are trying to determine whether he has the authority to act on his own to block migrants at the U.S.-Mexico border, should it be deemed necessary.

The discussions around executive action are part of a Biden shift to toughen his approach to border security in the run-up to the election. Such moves could further undercut Biden's 2020 campaign promises to restore access to U.S. asylum that was restricted under Trump.

The Biden administration has considered using a legal statute known as 212(f) that served as the basis for Trump's travel ban policies blocking travelers from some Muslim-majority nations and other countries, a person familiar with the matter told Reuters in February.

The Supreme Court upheld the travel ban policy in 2018, but a separate Trump effort to deny migrants at the border using the same statute was blocked in court.

Trump criticized the possible Biden executive action on Tuesday in a Truth Social post, saying in hyperbolic terms that Biden "opposes deportations" and wanted to allow migrants in the U.S. illegally to vote in elections.

WHAT DO REPUBLICANS SAY BIDEN SHOULD DO?

Republicans say Biden should reinstate Trump-era policies that sought to deter border crossings and roll back new measures that offer certain migrants ways to enter legally.

Republicans want Biden to restart the Trump-era "remain in Mexico" program, which forced certain non-Mexican migrants to wait in Mexico for the resolution of their U.S. cases.

As a president candidate in 2020, Biden argued the policy forced migrants to wait in dangerous conditions in Mexico. The Biden administration ended the policy in 2021 shortly after he took office.

The Mexican government opposes the program, which would complicate any attempts to restart it. Democrats and immigration rights groups oppose it, too.

Republicans also say Biden should resume construction on a wall across the U.S.-Mexico border.

The Biden administration halted border wall construction after taking office, but reversed course last year saying it would restart some construction because it was required to use funds allocated in the previous administration.

Republicans say Biden should detain all migrants encountered at the U.S.-Mexico border, something that the Trump administration was not able to do.

The Biden administration is already holding around 39,000 migrants in U.S. Immigration and Customs Enforcement detention facilities around the country, according to public ICE data, more people than its funded capacity for 34,000.

(Reporting by Ted Hesson in Washington; Additional reporting by Nathan Layne; Editing by Mica Rosenberg and Aurora Ellis)