(Bloomberg) -- President Joe Biden plans to sign an executive order tightening measures at the US-Mexico border as soon as Tuesday, looking to curb the flow of asylum seekers that has become a major political liability before November’s general election.

The move comes after another failed push to pass bipartisan legislation to address the border, and as the administration has rolled out smaller steps to speed certain deportations. The administration’s plans were described by people familiar with the effort who requested anonymity before the president publicly unveiled the measure.

The order, certain to face legal challenges, comes as Biden looks to reverse criticism of his handling of the border surge, which polls show has become a defining issue for voters. He has assailed Donald Trump, his general election opponent, for pressuring Republican lawmakers to kill a bipartisan deal that would have given Biden fresh powers and money to address the issue.

The White House has been signaling that it planned to take unilateral action with Congress deadlocked, though an official said Thursday there had not been any final decision. White House spokesman Angelo Fernandez Hernandez said the “administration continues to explore a series of policy options and we remain committed to taking action to address our broken immigration system.”

Details about the timing of the executive order were first reported by the Associated Press, which said the order would likely implement automatic removal if irregular border encounters crossed a certain weekly threshold.  

Biden has been considering unilateral action to deal with the migrant crisis since Republicans blocked a bipartisan deal in February. A Democratic effort to resuscitate the legislation earlier this month ultimately went nowhere, with Republicans remaining steadfast in their opposition.

Court Challenges

Any Biden action though faces the threat of litigation — a possibility Biden said the White House was considering as he weighed what unilateral steps he could take. Trump’s actions on immigration while president tested the boundaries of the law and some of his measures were overturned in court, limiting the options available to Biden.

Conservative groups have pushed for Biden to act under Section 212(f) of the Immigration and Nationality Act, but the scope of those powers are disputed. 

Top Department of Homeland Security officials have stressed the limits of executive action and the likelihood of legal battles.

“There is only so much that can be done through executive action, through legal action without legislation,” DHS General Counsel Jonathan Meyer said at an American Bar Association event Wednesday.

“An executive action will be challenged, I am confident in that,” Homeland Security Secretary Alejandro Mayorkas told reporters last week. “And then the question will be what is the outcome of those proceedings.”

The new moves are the latest in a series of efforts by Biden to tighten immigration rules. In May, the administration proposed a rule that would allow the US to expedite expulsions of undocumented migrants seeking to claim asylum in certain cases — though the change will only affect a small percentage of those caught on the border. 

Mexican Election

Biden has also enlisted Mexican President Andres Manuel Lopez Obrador to help address the situation, with the two leaders agreeing in April to an effort to reduce the number of people who cross the land border between ports of entry. Increased enforcement under AMLO, as the Mexican president is known, has helped levels fall substantially from an eye-popping 310,000 encounters recorded in December of 2023. 

The executive order, though, will land following Mexico’s presidential election, set for Sunday, in which voters will select a successor to AMLO.

National Security Council Spokesman John Kirby said the administration has “every hope and expectation” that the Mexican government would continue to act on migration in the transition period after the election. 

“We certainly have no expectation that Mexican cooperation and support is going to diminish,” Kirby said Tuesday.

Biden has said the US should have a higher threshold for those with asylum claims — people who cross the border and appeal to stay on humanitarian grounds. 

US authorities recorded more than 300,000 encounters at the border in December, though the numbers have fallen to just over half that level in the four months reported since.

(Updates with additional details, background throughout.)

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