Biden tries to reverse Trump's impact on the courts — but continues to defend parts of his agenda

President Biden has even chosen to expand one of Trump's most draconian policies

By Jon Skolnik

Staff Writer

Published February 26, 2022 4:33AM (EST)

Donald Trump and Joe Biden (Photo illustration by Salon/Getty Images)
Donald Trump and Joe Biden (Photo illustration by Salon/Getty Images)

During the first hundred hours of Joe Biden's presidency, Biden issued a wave of executive actions aimed at undoing the legacy of his conservative predecessor, Donald Trump. At the time, many of those actions successfully scaled back or outright eliminated Trump's policies on immigration, climate, and public health, leading many mainstream outlets to frame Biden's win as the dawn of a new era. But as Biden continues to maintain, and in some cases, expand the policies and practices of the Trump-era, failing to deliver on many of his campaign promises, it's hardly apparent that this new era will arrive at all. 

Biden's failure to deliver on his agenda holds especially true with respect to immigration, an issue on which the president has bolstered a number of Trump-era holdovers.

Notably, the president has chosen to expand one of Trump's most draconian border policies, "Remain in Mexico," which mandates that all asylum-seekers stay in Mexico until the scheduled date of their immigration hearing. The policy, enacted in January 2019, forces thousands of migrants to live for months in squalid encampments and shelters along the border, which are notoriously rife with gang violence.

Back in October 2019, Biden, then a presidential candidate, blasted Trump over his use of "Remain in Mexico," claiming during a debate that Trump was "the first president in the history of the United States of America that [said] anybody seeking asylum has to do it in another country."

"That's never happened before in America," Biden said. "They're sitting in squalor on the other side of the river."

Upon taking office, the president seemingly kept his word on the matter, nixing the policy in January. But after a Texas judge in August ordered that the rule be reinstated, Biden did little to fight back, Vox noted, and has in some ways actually expanded the policy's scope.

RELATED: ​​Court ordered Biden to restart Trump's "Remain in Mexico" — but he didn't have to make it worse

For one, Biden's version of the policy sets out clear individual asylum cases within six months – the same period of time allotted by Trump. Biden is also now allowing border agents to determine whether a migrant has "reasonable possibility" of facing danger in Mexico. But while 85 to 90 percent of the program's enrollees say they fear harm, The Washington Post reports, only 10 to 15 percent are found to face a "reasonable possibility" of facing any danger.

Most alarming is the fact that Biden has actually expanded the program's eligibility requirements, as BuzzFeed News reports. Under Trump, only migrants from Spanish-speaking countries, including Brazil, qualified for the program. But under Biden, asylum-seekers from any country in the Western Hemisphere will be sent back to Mexico. This means that Haitians, for example, who primarily speak Haitian Creole, will be sent to Mexico to await the hearing, where the dominant language is Spanish.

This expansion "is going beyond good faith implementation of the court order," one former Biden appointee told BuzzFeed News. "When you add new populations … you are intentionally implementing a program that you know is largely indistinguishable from the prior one and putting more populations in it."

Unfortunately, the elimination of "Remain in Mexico" is hardly the only immigration promise Biden has failed to deliver on. 

RELATED: Will Biden's Central America plan slow migration — or speed it up?

On the campaign trail, Biden vowed to raise Trump's refugee cap of 15,000 to 125,000. But while the cap was ultimately raised to 125,000 last September following months of progressive pressure, Biden only took in a paltry 11,411 in 2021, which, according to the Post, is the lowest level of admittance since 1980.

The president has also failed to do away with Title 42, a little-known public health policy that Trump used to mass-expel immigrants from the U.S. over COVID-19 concerns. Democrats and human rights groups have widely condemned the rule because it offers migrants no legal recourse to gain entry. Furthermore, dozens of doctors and epidemiologists, including Chief Medical Advisor to the President Anthony Fauci, have casted strong doubt over the scientific basis of the policy. Just last month, the Biden administration vigorously defended Title 42 by citing COVID risks, even though the U.S. spread of the Omicron variant was already well underway. 

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"The Title 42 order is not and has never been about public health. Rather it represents a cynical manipulation of public health arguments to advance political policies of immigration control," said Dr. Ron Waldman, Professor Emeritus at the Milken Institute School of Public Health, George Washington University. "Despite President Biden's promises to end the harmful immigration practices of the previous administration, his administration, acting through the [CDC], has fully embraced, defended, and used this inhumane policy for a year now."

RELATED: Top State Dept. official rips Biden's "illegal" and "inhumane" deportations on his way out

When it comes to immigration, it's also hard to discount the fact that the Biden administration has refused to right the wrongs of Trump's most draconian border policy: family separation. 

Shortly after taking office, the president established a Family Reunification Task Force designed to reunite the approximately 5,500 migrant families that had been separated under Trump. But as of last November, the Biden administration had only reunited thirty, according to Vice News. 

Worse, the Department of Justice has withdrawn from monthslong settlement negotiations around compensating the affected families. In November, Biden shot down the idea of paying $450,000 to families who will likely carry the lifelong trauma of temporary or permanent separation.

"That's not going to happen," Biden said during a press conference at the time, calling a Wall Street Journal report alluding to the $450,000 payments "garbage." 

The DOJ is specifically arguing that families aren't entitled to payouts from the government under the Federal Tort Claims Act, a 1946 federal statute that allows individuals to sue the U.S. government for personal injuries, such as psychological and physical trauma, caused by agents of the state. To make its case, Vox notes, the White House has claimed that Trump's separation policy – which Biden once called "a weapon against desperate mothers, fathers, and children seeking safety and a better life" – was legal. 

RELATED: Biden Administration may pay out more than $1 billion to migrant families separated under Trump

Back in 2019, a government watchdog found that separated children received little to no mental health support despite exhibiting "more fear, feelings of abandonment, and post-traumatic stress than did children who were not separated." 

"There's no amount of money, or anything really, that is ever going to make something like that okay," Conchita Cruz, co-executive director of the Asylum Seeker Advocacy Project, told Vox.

While immigration is no doubt an area of particular failure when it comes to rectifying Trump-era policies, it's far from the only one when you consider Biden's approach to climate change.

At the COP26 global climate summit in Glasgow, Scotland, back in November, the president promised "demonstrate to the world the United States is not only back at the table but hopefully leading by the power of our example."

But after that firm commitment, the president shortly proceeded to open more than 80 million acres in the Gulf of Mexico to auction off for oil and gas drilling – the largest kind of this sell-off in the Gulf of Mexico's entire history. Initially, Biden claimed that the auction was court-ordered due to a June court decision that forced Biden to lift his moratorium on drilling, a pause put in place last January. But according to The Guardian, no court judgment actually compelled the government to hold an auction.

"[The Department of Interior] had a lot of discretion over whether to hold this lease sale and they chose to do it anyway," Brettny Hardy, a senior attorney at Earthjustice, told The Guardian. "We have no good answer as to why they are doing this. It's problematic and disappointing." 

RELATED: The Biden administration said its drilling-lease spree in the Gulf was court-ordered. It wasn't

As a presidential candidate, Biden also vowed to ban drilling on all federal land. But his administration has apparently done a u-turn on that promise, approving more oil and gas drilling contracts on federal land than Trump, according to a report by Public Citizen. As Post reported back in November, Biden greenlit 35% more drilling permits during the first year of his presidency than Trump did in that same period.

"Biden's runaway drilling approvals are a spectacular failure of climate leadership," Taylor McKinnon, Senior Public Lands Campaigner for the Center for Biological Diversity, said in a statement. "Avoiding catastrophic climate change requires ending new fossil fuel extraction, but Biden is racing in the opposite direction."

By Jon Skolnik

Jon Skolnik is a staff writer at Salon. His work has appeared in Current Affairs, The Baffler, and The New York Daily News.

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Biden Administration Federal Courts Trump Administration