Under the circumstances, it is understandable that the Trump administration has chosen a novel reading of immigration law to justify new rules requiring most asylum seekers at our southern border to first seek asylum in another country. The nation needs relief from the flood of migrants from Central America demanding refuge in the United States.
But the new order by the attorney general is regrettable. Major policy changes should be authorized by Congress, not imposed by administrative fiat. The tendency of recent presidents, including Barack Obama and Donald Trump, to justify administrative remedies for problems that Congress won’t resolve is deeply unconstitutional.
Examples include Mr. Obama wielding his pen to shelter illegal immigrants from deportation and, possibly, the new asylum order, which will be tested in the courts.
Sensible congressional proposals to reform asylum law, including one from Sen. Lindsey Graham, R-S.C., have been stranded by Democratic opposition and bargaining over details of other immigration issues. The reform to asylum law is needed to discourage the flood of Central Americans and others pressing to enter the United States from Mexico. It should be enacted immediately.
Meanwhile, the Trump order, while legally suspect, addresses a major issue and the administration claims it is consistent with international migration treaties signed by most nations.
It says that most people alleging that they are fleeing dangerous circumstances in their home country must apply for asylum in the first country they enter and must be denied asylum there before they may apply for asylum in the United States. Exceptions are listed. The rule went into effect Tuesday.
Under existing law, this “safe third country” rule is clearly authorized with respect to countries like Canada with which the United States has a bilateral agreement.
Whether it can be legally imposed in the absence of such an agreement — with Mexico, for example — is a thorny question. But among other steps, Mexico has agreed to consider a “safe third country” agreement with the United States if its current efforts to stem the flood of immigrants are ineffective.
The assumption behind the recent U.S.-Mexico agreements and the new Trump order is that migrants from Central America and elsewhere who collect at the U.S. Mexican border or enter this country illegally don’t want to migrate to Mexico or any other country that lies along their journey. If given a choice of migrating to Mexico or staying home, they would stay home.
The courts should expedite their ruling on the Trump initiative to clarify the legal situation. Whatever the courts decide, in our view responsibility for addressing the border crisis lies primarily with Congress, which must not only meet the demand for improved reception facilities and more immigration judges to deal with the flood of migrants, but also must correct perverse incentives in U.S. asylum law.
Congress could solve this problem in a matter of weeks, if not days. By failing to act, Congress is ultimately responsible for the current tragedies at our southern border.