When coming out in support of rolling back a decades-old human right, it’s best to at least make it look like you considered the alternatives.

Some prominent centrist and center-left commentators have published pieces supporting last week’s Biden administration imposition of severe restrictions on the legal right to seek asylum at the U.S.-Mexico border. Some viewed it as an unfortunate but necessary step; some were downright celebratory.

• “I’m conflicted, finding myself caught between pro-refugee instincts and a practical recognition that the system wasn’t working,” wrote New York Times columnist Nicholas Kristof. Couching it as an “open borders” question, not a “right to seek protection” issue, he concluded, “we can’t absorb everyone who wants in, and it’s better that the ladder be raised in an orderly way by reasonable people.”
• Also at the New York Times, columnist David Leonhardt called the right to enter the U.S. asylum system, which was created after the United States’ 1968 accession to the Refugee Convention and 1980 passage of the Refugee Act, a “loophole.” It may be true that some people are applying for asylum because they know the backlogged U.S. system will let their cases drag on for years, but Leonhardt does not discuss options for fixing that.
• At his Liberal Patriot Substack, Democratic Party-adjacent demographer Ruy Teixeira excoriated the “progressive left” for holding Joe Biden “prisoner” on migration policy, and celebrated the new asylum curbs as a “jailbreak” for the President.

These columnists are entitled to their views. They may be right that inaction on the border could cost Joe Biden with some swing voters. And as noted, they may be right that the asylum system’s slowness and inefficiency could be a “pull factor” for some migrants.

These opinion pieces fail, though, by refusing to recognize that another option exists: an option that isn’t “swinging the doors open” (Kristof’s phrase). If the asylum system is broken (of course it is), then the Biden administration could fix it. This would be an administrative challenge—a fair amount of hiring and training—but hardly a moon shot for the U.S. federal government.

None of these columns talks about making the U.S. asylum system viable, and faster, adjusting it to a new era of historic worldwide migration. They don’t even mention it as an option to be discarded. Their analyses treat the asylum system as a fixed and immutable variable that we can’t do anything about. (So, incidentally, does the text of the administration’s interim final rule laying out the new asylum restriction: it laments the system’s backlog but scarcely mentions ways to address it.)

The new rule focuses only on the asylum system’s initial entry point: the U.S.-Mexico border. That makes it yet another in a ten-year-long series of efforts to deter asylum seekers at the borderline itself, or just before it. Like the others, from family separation to Remain in Mexico to Title 42 to Mexican government crackdowns, it will hurt people in the short term but will fail to move the numbers in the long term.

Where change is most urgently needed is further along in the asylum process. The backlog isn’t at the border: it lies in what happens afterward.

Imagine if it took less than a year to hand down most people’s asylum decisions, with full due process and without locking them up in detention. Imagine it being rare and unusual for cases to take longer than a year, because the system had enough judges, asylum officers, processors, case managers, and access to legal representation.

Right now—a full ten years after the first wave of Central American child and family asylum seekers surprised the Obama administration—the U.S. government is very far from that. With 725 immigration judges—9 fewer than in October!—and much fewer than 1,000 asylum officers available to attend to 1.3 million asylum cases and about 2 million other immigration cases, asylum decisions commonly take many years. In 2022, TRAC Immigration estimated an average of 4.3 years.

People who may not have understood the intricacies of U.S. asylum requirements when they came here—they just learned about the backlog’s effects via social media—end up in the United States, living their lives and awaiting a decision, for a very long time.

In many cases, such a long stay could be a good outcome because of the contributions people make while here. But it is insanity to require them to hire smugglers to get through the Darien Gap then run Mexico’s predatory organized-crime gauntlet just to touch U.S. soil, suffering abuse along the way.

Along with opening up other legal pathways, then, the goal should be to slash asylum backlog wait times while respecting and expanding rights. Fewer people who are unlikely to qualify would opt for the asylum system if the normal wait was shorter.

All that stands in the way of that is the hiring and training of a few thousand judges and asylum officers. A hiring expansion along these lines ($110m for new immigration judges, 4,338 new asylum officers) was part of the “border deal” legislation that failed in the Senate earlier this year.

Organizations and experts have recommended variations of this solution a ridiculous number of times. They include WOLA, Human Rights First, the Migration Policy Institute, the American Immigration Council, the National Immigration Forum, and the Bipartisan Policy Center, among many others.

What the Biden administration did last week is not that solution. Far from it. They decided to shut things down on the front end, rather than move to reduce the backlog.

Instead of shoring up and rebuilding the system to match an era of historic protection-seeking migration, they have made the system itself harder to access, in a way that is likely to endanger people and is almost certainly illegal.

We need an explanation for why the administration chose not to pursue the “reduce the backlog” option (and why that hasn’t been an important part of DHS budget requests since 2021). Defenders of last week’s “asylum shutdown” should at least add a sentence somewhere saying, ”We considered this but decided against it because X.”

The opinion columnists defending the “shutdown” fail even to mention action to reduce the asylum backlog. None even glance at building up asylum processing and adjudication capacity to get those ridiculous wait times down.

They don’t even raise it in order to shoot it down. They don’t say “this is impractical,” “this costs too much,” or “this might be a good way forward, but it’s gradual and can’t move the needle between now and November.” Instead of engaging this viable alternative, they blame “the left” for constraining the President from cracking down on asylum seekers.

Others have pointed out factual inaccuracies in these widely read pieces. But the most unsatisfying part of what they wrote is the failure even to acknowledge the “reduce the backlog” option, even just to dismiss it.

The United States is watering down a human right granted in past generations. This shouldn’t be done lightly, by blithely ignoring widely proposed, doable alternatives.