FACT CHECK: Fact-Checking Trump’s Claim That Biden ‘Doesn’t Need Congress’ To Close The Border

Christine Sellers | Fact Check Reporter

During a June 22 campaign rally in Philadelphia, 2024 presumptive Republican nominee and former President Donald Trump claimed President Joe Biden “doesn’t need Congress” in order to close the border.

Verdict: Unsubstantiated

Multiple experts emphasized the issue is complicated. There is presidential authority rooted in the law that allows the president to close the border during instances where migrant entry would be “detrimental” to U.S. interests.

Fact Check:

Trump spoke with the mother of Jocelyn Nungaray, a twelve year old killed in Houston, before he took the stage in the June 27 debate against Biden, according to Reuters. Nungaray was allegedly murdered by two Venezuelan men who illegally entered the country, the outlet reported.

During his June 22 campaign rally, Trump claimed Biden “doesn’t need Congress” in order to close the border. “All [Biden] has to do is say, ‘Close the border.’ He doesn’t need Congress. He keeps saying, ‘I need Congress.’ I didn’t have Congress, I closed the border, and we had the safest border,” Trump said.

The claim is unsubstantiated as experts differed on whether or not Biden had the power to do so.

Aaron Reichlin-Melnick, policy director at the liberal American Immigration Council, said that “what it means to close the border is subjective.”

“What it means to close the border is subjective,” Reichlin-Melnick said. “There could be a couple different definitions. It could mean stopping everyone from crossing, sealing it off, closing the border completely, or reducing the amount of people seeking asylum, which the Trump administration did,” he adding, citing the former Republican President’s 2018 travel ban.

According to 8 U.S. Code 1182(f), the president has the authority to suspend entry into the U.S. whenever it would be “detrimental.”

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” 8 U.S. Code 1182(f) begins.

“Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline,” it continues.

Similarly, 8 U.S. Code 1185 allows the president to set rules and regulations for the entry of “aliens” into the U.S.

Hans von Spakovsky, a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at the conservative Heritage Foundation, referenced both 8 U.S. Code 1182(f) and 8 U.S. Code 1185 as support for why Trump’s claim is “absolutely correct.”

“Trump is absolutely correct as I explained in a [February 2024] Fox commentary,” von Spakovsky said. “Federal immigration law gives the president that authority, and that statute was upheld by the U.S. Supreme Court in the Trump travel ban case,” he added.

In addition, the president has other presidential authorities that can be used to curb immigration at the border. Expedited removal (Immigration and Nationality Act (INA) 235(b)(1), mandatory and discretionary detention (INA 236a, INA 236c), ending “catch and release,” and reinstating the “Remain in Mexico” program are actions the president can take, according to Politifact.

Despite the laws and presidential authorities in place, there are still various challenges that remain with reducing immigration.

“Some things are out of the president’s hands,” Reichlin-Melnick explained, citing factors such as China’s recalcitrant deportation policy, Cuba’s former “wet foot, dry foot” policy, and a need for more asylum officers.

“Even when the border is supposedly shut, there are some basic realities about how deportations and repatriations work,” he reiterated.

Julia Gelatt, associate director of the U.S. immigration policy program at the liberal Migration Policy Institute, agreed, pointing out that neither Trump nor Biden “has been able to fully ‘close the border’ without Congress.”

“Both tried, in different ways, to prevent migrants from seeking asylum across the Southern border between ports of entry, by using executive actions. President Trump’s moves faced litigation and several were blocked by the courts. President Biden issued an order in early June to say that migrants (with narrow exceptions) crossing the border between ports of entry are ineligible for asylum. (That rule does not apply to unaccompanied minors.) Immigration advocates have promised to sue to try to block that move as well,” Gelatt said.

“One reason that it is hard for any President to ‘close the border’ without Congress is that under current U.S. law, migrants who express a fear of returning to their home country – or another country we might send them to – are entitled to a screening for some form of protection. U.S. laws say that we cannot return someone to a country where they are very likely to face persecution or torture. And the government currently doesn’t have the resources to conduct such a screening for every migrant who says they are afraid to be returned home. So right now – as under President Trump – many migrants are still put into deportation proceedings and released into the United States to wait for their day in immigration court.”

“Another reason it is hard to ‘close the border’ is that the government doesn’t have the resources to deport every migrant who approaches the U.S. border. We don’t have that many planes, buses, and people to run them. And there are countries that refuse to take their nationals back from the United States. We could try to return migrants to another country, like Mexico, instead, but Mexico has always set limits on how many non-Mexican migrants it will take back from the U.S.-Mexico border,” she added.

Likewise, back in March, Verify This reported the president cannot simply issue an executive order to shut down the border. According to the outlet, although the U.S. has laws in place that can be used to curb immigration, the U.S. also has laws that allow migrants to ask for asylum. (RELATED: Biden Campaign’s Comparison Of Rally Audience With Trump Is Missing Context)

Simon Hankinson, a senior research fellow in the Border Security and Immigration Center at the Heritage Foundation, agreed with the claim that the president can close the border, labeling Trump’s statement as “correct in general.”

“Bearing in mind that President Trump has a unique rhetorical style when speaking to large audiences and wasn’t specific in this speech, he is correct to say in general that President Biden does not need additional Congressional authority to secure the border. After facing initial challenges, like thousands of unaccompanied children, Trump was able to reduce illegal entry into the U.S. to historic lows through a series of measures.”

“Asylum Cooperative Agreements with Central American countries allowed the US  to quickly repatriate illegal border crossers who had crossed through other safe countries on the way here. The Migrant Protection Protocols (‘Remain in Mexico’) kept putative asylum seekers out of the country during the process of their cases, discouraging economic migrants from using fraudulent asylum claims as a pretext to gain entry and jam the system. Trump began construction on a border wall, sensors, and barriers that would minimize opportunities for illegal entry and channel attempts to areas where Border Patrol resources could best meet them. All told, illegal border crossings were down about 85% at the end of his term.”

Hankinson pointed to Biden’s executive orders that reversed Trump’s, telling Check Your Fact that “[t]his encouraged more illegal immigrants, in a vicious circle that has seen 10 million ‘encounters’ at the Border under Biden so far.”

“Biden exacerbated the draw by creating programs that abuse immigration parole to bring in over a million more inadmissible aliens. Lack of interior enforcement further undermined any credible threat that illegal arrivals would ever be made accountable for breaking our laws and living here illegally. Biden’s DHS Secretary [Alejandro Mayorkas] issued an Enforcement Memo explicitly instructing staff not to try and remove aliens simply for being here illegally. His ICE senior attorney issued a Memo, following Mayorkas’ lead, expressly telling ICE prosecutors to use “prosecutorial discretion” to drop cases they are legally supposed to prosecute.”

“Biden did all of that with a series of executive orders, creating a giant magnet for illegal immigration, knowledge of which spread all over the world at the speed of social media. He could undo it all the same way, though it would take some time for the deterrent effect to assert work again.”

Reichlin-Melnick took a different position, saying the issue of the border “implicates more than just presidential authority” and also calls “diplomatic relations and resource allocations” into question.

“This is an incredibly complicated topic,” Reichlin-Melnick said.

Douglas Ligor, acting director of the Management, Technology, and Capabilities Program in the Homeland Security Research Division at the nonpartisan RAND Corporation agreed that the topic is complicated.

“It’s a complicated issue. The president does have a couple different statutory authorities,” Ligor said, citing 19 U.S. Code 1318 and 8 U.S. Code 1182(f). However, it is “misleading to say the president can shut down the border at any time, because the law is not written that way,” Ligor added.

In referring to 8 U.S. Code 1182(f) specifically, which gives the president the authority to close the border if allowing migrants in proves “detrimental” to U.S. interests, Ligor emphasized that different administrations might interpret the statute differently.

“‘Detrimental’ is not defined in the statute itself, so it’s up to the administration to determine that itself, and then they would have to establish it in court. There may be different interpretations as to what constitutes a threat to national security,” he said.

Finally, Ligor highlighted that asylees have the right to apply for asylum under INA section 208, and there “has to be some process to adjudicate asylum claims.” “We can’t just not follow the statute,” he said.

Check Your Fact has contacted the Biden campaign, a Trump spokesperson and multiple other experts for comment and will update this piece accordingly if one is received.

Christine Sellers

Fact Check Reporter