When Congress Is Silent, Trump Expands His Power

Migrant crossings at the U.S.-Mexico border surged into the millions during President Joe Biden’s first three years in office, but they have nearly ceased in the last 18 months. President Trump says it’s all because of the crackdown on asylum seekers he launched by executive proclamation on his first day in office. “As it turned out, we didn’t need legislation,” he boasted in December. “We just needed a new president.” In contrast to his sometimes chaotic and violent deportation drive, opposition to Trump’s border policy has been muted. You can’t argue with success: encounters between the border patrol and migrants peaked at 250,000 in December 2023; by December 2024, the number was a still-significant 47,000. Under Trump it has plunged further, to well below 10,000 a month—the lowest rate since the early 1960s. There’s just one little problem: Trump’s policy might not be legal. In fact, federal courts have repeatedly ruled that it is not, finding that the president had no authority under current immigration statutes to issue his proclamation. According to these judges, he did, in fact, need new legislation. This is potentially a very big deal, though the rulings have drawn little media coverage—perhaps because they have been stayed pending the Trump administration’s appeals. But now everyone needs to start paying attention: Trump’s Solicitor General, John D. Sauer, has asked the Supreme Court to take up the case and salvage what he called “the Administration’s single most effective policy in resolving a border crisis.” The justices have no risk-free option, legally or politically. They can uphold the lower courts’ rulings that the policy was illegal, possibly triggering a new rush of migrants to the border—or even defiance from a furious Trump. Or the justices can ratify Trump’s policy and its bold assertion of executive authority. This would not only truncate the United States’ commitment to asylum but warp the balance of power between the president and Congress. In short, there is no easy path forward. But whatever the ultimate outcome, this is already a case study in the dysfunction bred by the chronic failure of a polarized Congress to update immigration laws, which were last significantly revised in 1996. The laws are not suited to a new reality in which millions of people, taking advantage of revolutions in communications and transportation, can move toward the border, drawn by the possibility of applying for asylum—and stay in the United States for years as an overwhelmed bureaucracy tries to adjudicate their claims. As a legal matter, the issues before the Supreme Court are analogous to those they faced earlier this year when they ruled on a challenge to some of Trump’s tariffs. Now, as then, he stands accused of claiming power that neither the Constitution nor the relevant statutes actually give him. The case centers on Trump’s January 20, 2025 proclamation, which essentially blocked irregular border-crossers from seeking any form of continued presence in the United States, including asylum. It also provided for their summary expulsion. The administration says this is lawful under a provision of the Immigration and Nationality Act (INA), which empowers the president to “suspend the entry of all aliens or any class of aliens” whose admission “would be detrimental to the interests of the United States.” The proclamation thus identifies a class of “alien[s] engaged in the invasion across the southern border” and suspends their entry indefinitely. It then authorizes a new fast-track removal process for them—bypassing the ones laid out in the INA, which allow even excludable aliens some possibility to remain in the United States. The administration’s theory, expressed in its Supreme Court petition, is that “the power to exclude must include the power to expel if the former is to have any meaningful force.” As for asylum, people have an absolute right to apply for it under the INA, even if they are in the United States illegally. But that same law says granting asylum, even to those who qualify, is a matter of pure executive discretion. Trump exercised that discretion to issue a preemptive denial of asylum to all unauthorized border crossers in his proclamation. The government argues it doesn’t have to consider them before expelling people. It’s a creative interpretation of the law. Just like the tariffs case, the administration discerned sweeping delegations of power to the president lurking in statutes that had never been read that way before. And last year, a district judge ruled that while the president does have broad authority to bar aliens from the country, he cannot use it to bypass the procedures Congress established for removing people who have already entered. In April, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit mostly agreed. “Congress did not intend to grant the Executive the expansive removal authority it asserts,” Judge J. Michelle Childs wrote. Nor, she added, does it allow him to deny asylum preemptively. What’s unlike the tariffs case, though, is the political context. The president imposed tariffs in the teeth of widespread opposition that included many businesses and some Republicans. By contrast, there was broad agreement in 2025 that the situation at the southern border presented a real problem, and that security needed to be enhanced, even though the crossing numbers had fallen in the last year of Biden’s term. (In fact, Biden himself resorted to executive action to stem the flow, which the courts also ruled against in 2025 once he was out of office and Trump’s policy had superseded his.) So what next? In theory, the justices could refuse to hear the administration’s appeal; that would allow the D.C. Circuit ruling to take effect, upending Trump’s border policy. Given the stakes, however, the Supreme Court is unlikely to let such an important change take place without at least considering the matter themselves. The Supreme Court’s three liberal justices will probably vote against Trump. Would any conservatives join them? It’s an open question. The “major questions doctrine,” which all six Republican-appointed justices have endorsed, holds that courts should look skeptically on claims that Congress delegated the executive unusually significant powers through vague, indirect, or previously unused statutory language. But as they did in the tariffs case, conservative justices like Brett Kavanaugh, Samuel Alito, and Clarence Thomas will be tempted to take the path of least resistance and back the president. After all, the Republican appointees who voted to strike down the tariffs—Roberts, Gorsuch, and Barrett—paid a high price in vitriol from the president and his supporters. It’s clear that we cannot rely on the executive or the judiciary to reach a stable settlement at the border. They are responsible, respectively, for executing and interpreting law, not making it. Few recent events have destabilized and distorted American politics more than illegal immigration, and the backlash to it, which propelled Trump to the White House twice. Congress might have obviated this by modernizing the asylum system and providing more legal pathways for those who come seeking work. Instead, lawmakers have abdicated for thirty years, leaving presidents and courts to wrangle over national policy. Today we are living with the corrosive impact on governance and the rule of law. Charles Lane, a contributing writer at Persuasion, is a nonresident senior fellow at the American Enterprise Institute and a columnist for The Free Press. Follow Persuasion on X, Instagram, LinkedIn, and YouTube to keep up with our latest articles, podcasts, and events, as well as updates from excellent writers across our network. And, to receive pieces like this in your inbox and support our work, subscribe below: I was watching a video through a rifle night scope of a farmer taking out a bunch of rats in his barn. I believe that this type of action is going to be necessary to get the rats out of Congress before they destroy the country with mass migration.