The Weekly Sift

A bad process, but a good cause.

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One of the first things President Trump did in his second term was to “declare that an invasion is ongoing at the southern border” and respond by directing “that entry into the United States of such aliens be suspended until I issue a finding that the invasion at the southern border has ceased.” His order also denied the right of migrants at the border or having entered the US to contest removal by applying for asylum.

A federal court previously found that the president had overstepped the bounds of his power, and Friday the DC Circuit Court of Appeals agreed.

we hold that the Proclamation and Guidance are unlawful insofar as they circumvent Congress’s carefully crafted removal procedures and cast aside federal laws that afford individuals the opportunity to apply and be considered for a grant of asylum or withholding of removal.

This topic is a bit messy to discuss, because several things are true at the same time.

• Our laws about asylum exist for very good reasons.
• Our current asylum process doesn’t work well and is open to abuse.
• Processes established by law need to be changed by Congress, not by the President.

Why do we grant asylum? Asylum allows people escaping oppression in one country to seek refuge in another.

Any discussion of asylum needs to start with the voyage of the St. Louis, an ocean liner in the Hamburg-Amerika fleet. After Kristallnacht, many German Jews decided that it was not safe to stay in Germany. The St. Louis left Hamburg on May 13, 1939 with 937 passengers, nearly all of them Jews. The original destination was Havana, where many of the passengers hoped to wait until they could be granted admission to the United States. But the Cuban government allowed only 28 of them to land. The rest remained on the ship, which then tried to go to Miami, where the passengers were also denied entry. (Direct appeals to President Roosevelt went unanswered.) The St. Louis then returned to Europe. Britain, Belgium, the Netherlands, and France accepted most of the passengers, at least temporarily. But few managed to get out of Belgium, the Netherlands, and France before the Germans conquered those countries. Eventually, 254 of the St. Louis passengers died in the Holocaust.

Often when we look back at the Holocaust, we ask “Why didn’t more Jews leave while they could?” The answer is that many did try, but had nowhere to go. Hundreds of Jews who would ultimately die in the Holocaust made it as far as Miami’s harbor, but were sent back.

Much of the world made a Never Again pledge in response to the horror of the Holocaust. That sentiment got institutionalized in several international agreements, like the Convention on Refugees, the Convention Against Torture, and the Universal Declaration of Human Rights. The United States is party to all these agreements, and Congress has passed laws to implement the promises we made there. When the Trump regime announced that it would no longer accept applications for asylum, it was violating not only US laws, but the treaties we had signed.

What’s wrong with our asylum system? I’ll let the Trump regime make the case in its own words. Here’s Deputy Secretary of State Christopher Landau speaking to a UN conference in 2025:

I think now in the year 2025 – we’re a quarter of the way through the 21st century – we take a step back and we see that there are massive migratory flows taking place, and a lot of times massive amounts of people are claiming asylum. In our system at least, when these claims get adjudicated, 90-plus percent of people are found not to be eligible for asylum. And we all know this kind of abuse is happening, frankly. And people who are economic migrants are coming in, in our country, saying that they are – that they should be given asylum. Our problem is when you have hundreds of thousands of people who arrive all at once and claim this, that really requires an individualized adjudication.

So now, we are in a sense saying, okay, well, please, you take a number and we will be back for your individualized interview in six years. And in the meantime, people can live in our country legally. They can start – they might get married. They can work. And so in a sense the migration – the asylum system has become a huge loophole in our migration laws. And we just have to be realistic about this, right? And I think the UN has a responsibility – just as it was instrumental, I think, in encouraging countries to adopt these kind of laws, I think we have to be realistic that these laws are now being abused. And we have to just acknowledge that.

Now, this is a Trump official, and the Trump regime is famous for fudging numbers. So ignore some of Landau’s specifics, like the 90% and the six years. But here’s the liberal Brookings Institute saying something similar:

Further complicating the task of managing the southern border was an historic change in the nature and sources of unauthorized border crossers. During the final decades of the 20^th century, most of such crossers were working-age young Mexican men. But during the current century, the mix shifted to families from Central America and beyond who sought asylum in the United States by claiming a “reasonable fear of persecution” in their country of origin.

The evidence suggests that most asylum seekers were fleeing poverty, lack of economic mobility, crime, and political disorder — all good reasons for leaving but these do not meet the standard for being granted asylum. Nevertheless, the law requires that asylum claims be assessed on a case-by-case basis, and as the number of cases rose sharply, the institutions responsible for adjudicating them were overwhelmed. During the past decade, the share of immigration cases resolved each year has fallen by half, and the backlog of pending cases rose from about 400,000 in 2013 to more than 3.1 million by the end of 2023. Few were held in detention for long periods; most were released into the U.S. with court dates far in the future, a policy that critics denounced as “catch and release.”

So the gist is: Yes, you’re poor and you long for the kinds of economic opportunity you might find in the US. But you’re not the future Holocaust victim our asylum laws were meant for.

The problem with a system like this is that once the problem becomes known, it gets worse: The swamped immigration courts result in longer delays, which encourage more people to apply even if they don’t have a good case. And that swamps the courts further.

What to do. Obviously, we need to process asylum cases faster. If we could do that, the motivation to file a flimsy asylum case would diminish, reversing the vicious cycle we’re currently in.

There are two ways to do this:

• Create more immigration courts to work through the backlog faster.
• Streamline the process so that each case takes less court time.

Each way has a downside: More courts require more money, and a streamlined process may not give asylum seekers a fair opportunity to present their cases. So a certain amount of care needs to be taken. But both are preferable to just shutting the door, as Trump wants to do.

In any case, the solution needs to take account of our treaty obligations and the laws Congress has already passed. And that means that Congress has to pass the solution; it can’t just be imposed by the President.

What stands in the way of a legislative solution is that Trump does not know how to make a win-win deal. He wants what he wants, and he wants to get it without giving up anything. But Democrats are going to want things too, like a path to citizenship for the Dreamers and limits on mass deportation. Congress is a place for compromise, and Trump hates compromise.

Partly that’s just him, but it also represents the people who elected him. In 2024, a compromise immigration bill was ready to go through Congress, but Trump urged Republicans to pull out of the deal so that he could have a better issue to run on against Biden or Harris. And before Trump, back in 2013 a carefully crafted bipartisan compromise passed the Senate before House conservatives rejected it. (Arguably, his role in crafting the compromise was what scuttled Marco Rubio’s presidential candidacy in 2016.)

Above all, we need to do something. There are still oppressive governments in the world and still people in need of refuge. When the next St. Louis liner arrives in Miami, we don’t want to turn it away.