- - Tuesday, November 8, 2022

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.


By expanding the narrow and obscure presidential authority to grant “humanitarian parole” — the legal term for temporary admission — and allowing foreigners to enter the United States improperly, the Biden administration is bypassing Congress’ traditional law-making power to regulate immigration.

Found in Section 212(d)(5)(A) of the Immigration and Nationality Act, this limited presidential authority to grant humanitarian parole was designed to address individual and case-by-case situations, usually in which someone who otherwise did not qualify for a visa could be permitted temporary admission for humanitarian reasons or significant public benefit.

The intent of Congress was clearly to address individual emergency situations, such as when a foreign national requires special medical attention or is needed to appear in a legal hearing. 

The assumption was that there would be a handful of such extraordinary cases, and the “parolees” would return to their countries after the visit. However, turning this narrow authority on its head, the Biden administration has created new programs out of thin air that bestow immigration benefits on hundreds of thousands of migrants who fall outside of the congressional quotas set for visas and refugees.

Homeland Security Secretary Alejandro Mayorkas recently announced: “Our program is based on a core principle of the Biden administration, which is when individuals are so desperate to leave the country that is their home … it is our responsibility to build safe, lawful and humane pathways that create opportunities for them so they do not need to avail themselves of the more desperate and dangerous measures that the perilous journey involves.”

The Constitution gives the executive branch no such power. Neither has Congress. While the Framers did not provide explicit direction to the federal government on managing immigration, the Constitution invests the Congress with sole power to “establish a uniform Rule of Naturalization” (Article I, Section 8), which is the basis for the legislative branch to regulate immigration.

In the first century of the republic, Congress concentrated its law-making focus on setting uniform standards for naturalization, that is, rules for becoming an American citizen. Through the late 1800s and into the early 20th century, Congress began to enact laws to limit immigration and to set admission standards for entry into the U.S. Immigration became a matter of statute, firmly in the domain of the legislature. 

Congress used that law-making authority to establish the Immigration and Nationality Act, first enacted in 1952. The INA is the comprehensive framework for U.S. law regarding visas, refugees, citizenship, admission and removal. It firmly established the principle that Congress sets legal immigration standards, an authority long accepted by the executive branch.

Accepted, that is, until Team Biden. Biden officials are essentially evading statutory requirements and sending a clear message to the world that the U.S. has open frontiers. 

Data released by the U.S. Border Patrol indicate that Mr. Mayorkas, using Section 212(d)(5)(A), has authorized legal admission to almost 350,000 clandestine migrants intercepted at our southern border in the past year. It is unclear which border-jumpers are turned into parolees and which are not.

In April, the administration announced that the U.S. would admit 100,000 Ukrainians annually based on parole authority, ignoring existing refugee numbers agreed upon in statute. When Ukrainian admissions blew past that ceiling, DHS said simply that 100,000 was “never a cap.” The number of Ukrainians entering the U.S. under this program is now evidently unlimited.

In October, Mr. Mayorkas announced the creation of 24,000 parole admissions for Venezuelans. Given the sheer numbers of migrants heading northward, it seems likely that Mr. Mayorkas will announce a new ceiling for Venezuelans, probably soon.

Similarly, with hundreds of thousands of Afghans fleeing the Taliban after President Biden’s disastrously executed withdrawal last year, the administration is resorting to parole authority to grant admissions, instead of requesting higher refugee quotas or emergency visa authority from Congress.

Other presidents have abused parole authority, but never on the scale of what Mr. Biden has done. Not surprisingly, the Trump administration tried to roll back parole admission programs set up by his predecessor. 

Meanwhile, Congress has unsuccessfully tried to limit the executive’s excessive and probably illegal use of parole authority, and Texas and other states have challenged the administration in court. It is possible that the Supreme Court will get a chance to restore the primacy of Congress on immigration.

But as new parole-based programs are continually invented, Congress cannot stand by and wait for the courts to intervene and protect the rule of law and its own authority. A new legislative majority must urgently move to stop Mr. Biden’s abuse of federal immigration law.

• Phillip Linderman is a fellow at the Center for Immigration Studies and a retired U.S. career diplomat.

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