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Biden’s ‘Equity’ at the Border

When the executive puts himself above the law, when he refuses to enforce the law, he essentially sets himself up as the new legislature.

Credit: JK21

Do you think that the policing of our southern border under President Joe Biden is a disaster? Of course you do. But it is in fact far worse than you likely think. Indeed, Biden’s is such a clear outlier from all previous administrations when it comes to border enforcement that he makes Presidents Obama and Trump seem comparatively indistinguishable from one another, which is no small feat.

That is the conclusion of the American Main Street Initiative’s latest Quick Hits, “Immigration: A Sea Change Under Biden.” Unlike every previous president, Biden is blatantly refusing to enforce federal immigration law. Simply put, he is emphasizing “equity” over law enforcement.


On his first day in office, Biden issued an executive order calling for a “reset” at the border, saying that he would “reset the policies and practices for enforcing civil immigration laws.” That same day, he issued a separate executive order on “equity,” declaring that his administration would pursue a policy of “advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

Subsequently, the Department of Homeland Security (DHS) quoted that part of Biden’s executive order and made clear that it would seek to implement it “[i]n the immigration and enforcement context.” In other words, “equity” is not just for American citizens. It is also for illegal aliens, at the expense of American citizens.

With Biden rolling out the red carpet, the number of monthly encounters with non-citizens at the southwestern border has skyrocketed. Per the American Main Street Initiative’s Quick Hits, “The average number of monthly encounters with non-citizens at the southwest border has risen from 47,876 in the eight years preceding Biden to 193,337 under Biden—a 4-fold increase.”

Indeed, there have already been 1 million more encounters in just two-and-a-half years under Biden (5.6 million) than there were in the prior eight years combined under Obama and Trump (4.6 million, made up of 2.2 million under Obama, and 2.4 million under Trump).

But it is not just that hordes of illegal aliens are coming to the border. It is what happens once they arrive. Recently retired U.S. Border Patrol chief Raul Ortiz, who was a Biden administration appointment, has said that aliens are likely “turning themselves in because they think they’re going to be released.”


They have good reason to think this. Per the Quick Hits, “In December 2020, the last full month under Trump,” the “U.S. Border Patrol released 17 aliens into the U.S.” Just two years later, “in December 2022, under Biden, it released 140,355—more than 8,000 times as many.”

All of this is by design—and it isn’t particularly well-disguised. In a 2022 interview, Fox News anchor Bret Baier asked DHS Secretary Alejandro Mayorkas whether “it is the objective of the Biden administration to reduce—sharply reduce—the total number of illegal immigrants coming across the southern border.” Amazingly, Mayorkas wouldn’t answer yes. Instead, he immediately replied, “It is the objective of the Biden administration to make sure that we have safe, legal, and orderly pathways for individuals to be able to access our legal system.”

What Mayorkas means by this is a system that lets illegal aliens come to ports of entry and then be released into the interior of the country. To quote the American Main Street Initiative’s report again, “The Biden administration insists on calling this ‘lawful’ entry, but the law requires that those entering the U.S. without proper documentation be continuously detained until their claim can be adjudicated, since they don’t have the documents required to enter lawfully.”

The effects of having an essentially open southwestern border have been profound. As the Quick Hits notes, “In just two years under the Biden administration, the U.S.’s foreign-born population over the age of 16 rose by 3.9 million—more than enough people to populate a new Los Angeles.”

The Constitution requires that the president “take Care that the Laws be faithfully executed.” When it comes to federal immigration laws, Biden is plainly—and unconstitutionally—abdicating his duty in the name of “equity.”

As citizens, we generally take it for granted that the executive will execute, or enforce, the law. Indeed, our constitutional design depends upon this. The legislature makes the laws; the executive enforces them. When the executive puts himself above the law, when he refuses to enforce the law, he essentially sets himself up as the new legislature.

That is what Biden has done. He has effectively substituted his own “equity”-based immigration policy for Congress’s duly passed policy, in clear defiance both of federal law and of the constitutional separation of powers. It is time for the citizenry, Congress, and the courts to take notice.