The Border Patrol has encountered more than 5.6 million illegal border crossers on the Southwest border during the Biden presidency, and it has released more than 2.3 million of them into the country.
Why is the Biden administration allowing this?
A possible answer can be found in an executive order that Biden signed on the first day of his presidency. It reverses former President Trump’s memorandum that excluded undocumented immigrants from the decennial census that is used to determine how many seats states will have in the House of Representatives.
Undocumented migrants tend to settle in Democratically controlled cities that have adopted sanctuary policies that protect them from the threat of deportation, so any additional seats are likely to benefit the Democrats.
Biden claims that our “elected representatives have a responsibility to represent the interests of all people residing in the United States and affected by our laws.” If congressional representatives have a responsibility to represent undocumented immigrants, though, why have they legislated statutory provisions that make them deportable? How is that representing their interests?
The interests being represented in this situation are those of the Democratic Party, not those of the illegal border crossers Biden is releasing into the country.
Process for allocating congressional seats
Article I, Section 2 of the U.S. Constitution mandates that the apportionment of representatives among the states will be carried out within every 10-year period. Apportionment is the process of determining the number of representatives each state will have in the House of Representatives.
Congress capped the number of members in the House at 435. Congressional districts have an average of 761,168 residents.
Each state receives at least one seat. The remaining seats are allocated on the basis of each state’s percentage of the total U.S. population.
The census also determines how many electoral votes the states will get for electing the president. Presidents are not elected directly by the voters; they are chosen instead by electors in what’s known as the Electoral College. States get one elector for each congressman they have, counting members in both the House and the Senate.
Mark Krikorian, the executive director of the Center for Immigration Studies, points out that, "Illegal immigrants aren't even supposed to be here, so their inclusion in the census count for purposes of apportionment really is outrageous."
Trump’s exclusion of undocumented migrants from the census was never implemented.
According to the Pew Research Center, if undocumented immigrants had been excluded from the 2020 census, California, Florida and Texas would have lost a congressional seat, and Alabama, Minnesota and Ohio would have held onto a seat that they would have otherwise lost.
There are at least two other possible explanations for releasing millions of illegal border crossers into the country.
1) To make asylum available to more asylum seekers
This may have been a reason to let asylum seekers into the country initially, but it should have become obvious very quickly that our immigration courts could not adjudicate their asylum applications.
The immigration court already had a backlog of 1,290,766 cases when Biden began his presidency. The applications of new asylum seekers couldn’t be adjudicated unless they were taken ahead of the applications of asylum seekers who had been waiting a very long time for a hearing. The average wait for a hearing was 811 days; this did not count continuances and other delays in the proceedings.
According to TRAC Immigration, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration, which has buried the immigration court in an avalanche of cases. As of the end of January 2024, the backlog had 3,363,667 cases.
The immigration court has more than 700 judges and the administration has requested funding for 375 more. But the Congressional Research Service (CRS) estimated in a July 2023 report that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when CRS made that calculation.
Moreover, the Biden administration isn’t making any progress on reducing the backlog. So far in fiscal 2024, the immigration court has received 844,333 new cases, and it only has completed 277,533. At that rate, the court would have to triple its number of judges just to keep up.
2) To fill job vacancies
We do need more immigrants to fill job openings. According to the U.S. Chamber of Commerce, we have 9.5 million job openings in the U.S., but only 6.5 million unemployed workers.
According to projections from the Congressional Budget Office, the surge in immigration that began in 2022 is expanding the labor force.
But Biden didn’t screen the illegal border crossers to determine whether they would be willing and able to fill our job openings.
The Chamber says that workers are needed in leisure and hospitality, durable goods manufacturing, financial activities, professional and business services, and leisure and hospitality. Some of these jobs may not require particular skills, experience or education, but some do.
Moreover, migrants who cannot speak English are at a disadvantage. It will be difficult to get a job as a financial advisor if you only speak Japanese.
Meanwhile, someone has to provide the financial support, housing, medical care, and other services the migrants need until they have work authorization and have found a job.
This is creating a hardship on the cities the undocumented migrants have settled in. For instance, New York City Mayor Eric Adams says that New York has been struggling to provide housing and services to the migrants Biden is letting into the country, and there is no end in sight. He is afraid that this situation will destroy New York.
I don’t think Biden has been letting millions of illegal border crossers into the U.S. because he thinks they will be able to apply for asylum or fill job vacancies. It seems more likely that he is doing it to gain an advantage for his party in the next apportionment of congressional seats.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanrappaport.blogspot.com
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