The American Civil Liberties Union is suing the Biden administration over a recent executive order that aims to limit the number of illegal aliens that cross the southern border daily. 

President Joe Biden’s executive order, which he signed June 4,  gives him the authority to close the border when the seven-day average of daily border crossings between ports of entry exceeds 2,500. The border will only reopen if crossings between ports fall to a seven-day daily average of 1,500 or less. 

Pro-immigration groups were quick to criticize the order, saying Biden’s actions would restrict asylum claims. 

“We were left with no alternative but to sue,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement Wednesday.

“The administration lacks unilateral authority to override Congress and bar asylum based on how one enters the country, a point the courts made crystal clear when the Trump administration unsuccessfully tried a near-identical ban,” Gelernt said. 

In 2018, former President Donald Trump sought to restrict the asylum claims of migrants who crossed the border illegally, but the move was blocked in federal court. 

The National Immigrant Justice Center, the Center for Gender and Refugee Studies, Jenner and Block LLP, the ACLU of the District of Columbia, and the Texas Civil Rights Project also signed onto the federal lawsuit.

The ACLU, a left-of-center legal defense organization, filed the suit in the U.S. District Court in Washington, D.C., on behalf of Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services, according to an ACLU press release. 

The Biden administration was aware of the likelihood of legal challenges to the executive order before is was signed. In his proclamation discussing the order, Biden said he was taking the action on the border because of “Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so.” 

A Senate border bill, which was touted as “bipartisan” and backed by Senate Majority Leader Chuck Schumer, D-N.Y., failed in February and again in May as Republicans said the bill would do more harm than good at the southern border by still allowing 4,000 illegal aliens to enter the country daily. 

In May 2023, the GOP-led House passed HR 2, a border security bill that would restart border wall construction, end catch and release, and reinstate the “Remain in Mexico” policy. The Senate has yet to take up the bill. 

Republicans and border security advocates have been critical of Biden’s action on the border, which Sen. Ted Cruz, R-Texas, called a “political play,” and House Speaker Mike Johnson labeled as “window dressing.”

During a press conference Tuesday, House Speaker Mike Johnson, R-La., called Biden’s executive order on the border “window dressing,” adding that if Biden “was concerned about the border, he would have done this a long time ago.”

It has been less than two weeks since Biden signed the border executive order and Fox News border correspondent Bill Melugin reports it is too soon to draw conclusions about the order’s influence on the number of daily crossings. But on Tuesday, Melugin reported that “the numbers are mildly and slowly moving down.” 

In the San Diego Sector of the southern border specifically, Melugin said he learned from Customs and Border Protection sources that there “were roughly 3,070 illegal crossings [Monday], a drop from the May daily average of about 3,800.” 

CBP has encountered more than 1.5 million illegal aliens at the southern border since the start of fiscal year 2024 on Oct. 1, placing the daily average number of encounters at and between ports of entry along the southern border at 7,138.