Running on a Record: Forecasting a Biden or Trump Presidency

By Rishi P. Oza

As the Presidential race heats up and culminates on November 3, both President Trump and Vice President Biden are candidates that are running on a record of achievement or lack thereof (depending upon your political stripes). With the country continuing to reckon with its past in the form of protests and rioting, President Trump has positioned himself as the “Law and Order" candidate, tweeting out this mantra repeatedly over the past weeks and months. Part of Trump's argument is that he is willing to ramp up enforcement of the country's laws, including tightening enforcement on the border with Mexico. He has also touted the benefits of his border wall, claiming as recently as August 18 that “we've won" and that “nobody gets through it."

The numbers don't necessarily bear out his assertions. As is clear by U.S. Customs and Border Protection (CBP)'s own records and statistics, CBP southwest border apprehensions have stayed remarkably consistent since 2015, when apprehensions totaled 444,859 and going to 553,378 in 2016 to 415,517 in 2017, 521,090 in 2018 and spiking to 977,509 in 2019. 2020 looks to total approximately 420,000 apprehensions, which would give Trump two years of fewer border apprehensions than the last two years of the Obama presidency.

This could be the result of a variety of different factors, including the prevalence of COVID-19 in the United States comparatively to countries south of the border, as well as a worsening economic outlook; alternatively, apprehensions are also likely to decrease with more of the border wall in effect, if one presumes that no one, in fact, “gets through it".

Biden's record is a bit more mixed, as he has obviously never held the office of the presidency. However, as Mr. Biden has telegraphed that he intends, at least rhetorically, on returning to the policies of Obama, which itself is a mixed bag. Critics long referred to Obama as the “Deporter in Chief" noting the high number of non-criminal deportations carried out under his watch. However, when examining the pure statistics, the Obama/Biden term yielded significantly higher numbers of removals compared to the first three years of the Trump/Pence administration. In fact, Trump's three years as president has resulted in the lowest number of annual removals over the Obama-Trump terms (2017 – 226,119 removals) and three of the five lowest totals for any of the years from 2008 – 2019. Again, while forecasting Biden's term based upon that of Obama is hardly scientific, the numbers simply don't bear out Trump's stance.

What do all of these numbers tell us – well, that likely depends upon what side of the political isle that you sit. Biden's critics will assert that he was part-and-parcel of a heartless campaign against immigrants and presided over some of the country's highest removal numbers in years. Proponents will argue that such numbers were required of the Obama Administration in attempting to galvanize support for a comprehensive immigration bill, in order to showcase that Obama was serious about border security.

Alternatively, Trump's critics will assert that for all of his bombast, he is simply all talk and hasn't actually changed much of anything; instead by separating families and targeting DACA, he has sullied America's international reputation. Proponents will contest that his enforcement policies need time to work and reducing the magnetism of illegal immigration will require another term to see actual impact.

The more important question is what does each candidate's past tell us about what the next four years will look like? Despite common perception, neither candidate controls the one lever of government that can substantially reform the current immigration system – that lever belongs squarely to Congress. The Executive Branch only controls enforcement of current immigration laws and though the Trump Administration has been largely defined by unilateral executive action (often met thereafter with court litigation), neither candidate has the authority to change the current immigration system outright.

All of this means that the fundamental way in which to have a system that reflects the values that we collectively consider just and moral requires understanding of down ballot elections and not simply by focusing at the top of the ticket. For gridlock in Congress will mean that we are stuck with a system that simply cannot address the core immigration concerns that need attention over the next four years.


Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham.