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WASHINGTON (AP) — President Joe Biden told the nation's governors on Friday that he's exploring what executive actions he can take to address migration across the southern border after a bipartisan deal collapsed in Congress this month. He seemed to express frustration at the limits of his authority to act unilaterally.
Later, during a private question and answer session with the governors, he indicated he was looking at what his options are for doing something by executive order.
“Over time, our laws and our resources haven’t kept up with our immigration system and it's broken," Biden told the governors, lamenting that "petty politics intervened” to kill the deal.
Utah Gov. Spencer Cox, the Republican chair of the association, told reporters later that Biden didn't specify what actions he is considering, but he said the president noted that he was confronting the limits of what he can do without Congress.
“He did say that he has been working with his attorneys, trying to understand what executive action would be upheld in the courts and would be constitutional, and that he seemed a little frustrated that he was not getting answers from attorneys that he felt he could take the kind of actions that he wanted to,” Cox said.
Colorado Gov. Jared Polis, Democratic vice-chair of the governors' group, said governors got a "general sense that they’re looking into whatever they can do on the executive side. Again, keeping our expectations realistic, that’s going to be more limited than a congressional solution.”
Polis said Biden cited federal courts overruling some of former President Donald Trump's immigration actions, and a desire to avoid a similar fate with any action he took.
“And so there was a frustration that that would occur under under his leadership as well, under any president, absent a change in the law,” Polis said. "A lot of the steps we need to take simply aren’t legal under current law.”
Cox added: “He mentioned the ability to declare an emergency at the border, what would that look like, could he do something like that. It was just kind of a general refrain when pushing back on ‘you need to do more’ and him saying ‘my attorneys tell me I can’t do more.’”
Among the actions under consideration by Biden is invoking authorities outlined in Section 212(f) of the Immigration and Nationality Act, which gives a president broad leeway to block entry of certain immigrants into the United States if it would be “detrimental” to the national interest.
Trump, the likely GOP candidate to face off against Biden this fall, repeatedly leaned on the 212(f) power while in office, including his controversial ban on travelers from Muslim-majority nations. Biden rescinded that ban on his first day in office through executive order.
How Biden would deploy that power to deal with his own immigration problems is being considered, and it could be used in a variety of ways, according to three people familiar with the discussions. For example, the ban could kick in when border crossings hit a certain number. That echoes a provision in the Senate border deal, which would have activated expulsions of migrants if the number of illegal border crossings reached above 5,000 daily for a five-day average. The people familiar with the talks spoke to The Associated Press on condition of anonymity to comment on private ongoing White House discussions.
Cox noted that as he's pressed Biden to act unilaterally, ultimately, more comprehensive solutions will depend on Congress.
“There’s some disagreement on how much the president can do and can’t do and I pushed back on the president on that," he said. "But we I think there’s also general consensus that the Congress does have to do something.”
He said if Congress can't back the comprehensive deal, then perhaps pieces of it, like boosting money for border patrol agents and asylum officers, could be tacked on to coming spending bills.
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AP writer Colleen Long contributed.