Embedded in the legal opinion that the Office of Legal Counsel released to justify the move is an important nugget that should, in theory, help take the steam out of the idea that this move is a flagrant violation of political norms.
Obama’s action temporarily shields from deportation the parents of children who are U.S. citizens and legal residents, and also expands the program (Deferred Action for Childhood Arrivals) to protect people brought here illegally as children. But it excludes parents of DACA recipients.
The reason for this offered by the OLC memo is that protecting parents of legal residents is in line with Congressional intent, as expressed in statute, while protecting DACA parents isn’t:
[T]he parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs [Legal Permanent Residents] under the family-related provisions of the immigration law. Many provisions of the INA [Immigration and Nationality Act] reflect Congress’ general concern about separating individuals who are legally entitled to live in the United States and their immediate family members….But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status in the United States with their families…Extending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted.
This legal opinion probably precludes any future expansion of this program to cover parents of DACA recipients. And it underscores two things: First, that the proposal is heavily focused on providing relief from humanitarian hardship endured by U.S. citizens and permanent residents, a longtime intention of Congress, as expressed in statute. Second, it shows that the proposal’s legal rationale is tightly circumscribed to reflect that Congressional intent.
Some continue to worry this move will damage relations between the parties and set a precedent for future GOP presidents to expand their authority to selectively target liberal priorities enshrined in law. Brian Beutler shows clearly that these concerns are overblown: GOP presidents already have done this, and allowing this concern to dominate the debate subjects any executive action to the “can the conservative movement whip up a sh*tstorm” test.
What’s more, it’s worth bringing serious skepticism to bear on the idea that this move tramples on Congress in some irrevocably damaging way. Just because Republicans say this will or should cause a “crisis” doesn’t make it true, and just because they are determined to turn it into one doesn’t mean that this outcome is inevitable or that commentators should reflexively slip into doomsday rhetoric that, wittingly or not, plays along with those efforts.
Sure, the proposal certainly takes us on to new and unprecedented territory, and there are legitimate concerns about the implications of this. But some perspective is called for, too. The proposal expands that authority on the basis that the executive has broad discretion to prioritize the limited resources Congress has appropriated for enforcement, and under the plan, the same resources will be deployed towards enforcement as before. And arguably, it was drawn tightly to help move us towards a longtime objective of Congress, one also in keeping with the goal of similar actions by GOP presidents: Making the immigration enforcement system more humane for Americans, legal U.S. residents with ties to this country, and their families.
* LEGAL SCHOLARS BACK UP OBAMA: A group of leading legal scholars has written a letter declaring Obama’s action is well within his legal authority to exercise broad discretion over how to employ the nation’s enforcement machinery. This is key:
There are, of course, limits on the prosecutorial discretion that may be exercised by the executive branch. We would not endorse an executive action that constituted an abdication of the President’s responsibility to enforce the law or that was inconsistent with the purpose underlying a statutory scheme. But these limits on the lawful exercise of prosecutorial discretion are not breached here.
In other words, there is a distinction between a reasonable exercise of prosecutorial discretion and outright non-enforcement of the law, and while opponents are working hard to obscure this distinction, this action falls on the right side of that line.
* MICHELE BACHMANN, STEVE KING RAISE PROFILES: Robert Costa reports GOP leaders worry the conservative rage Obama’s action has unleashed will seriously complicate their efforts to show the GOP can govern constructively and broaden its appeal. Exhibit A: Michele Bachmann claiming Obama’s act will bring in “millions” of “illiterate” immigrants. And:
On Friday, Bachmann and Steve King plan to travel to the U.S.-Mexico border to meet with officials to showcase their opposition to the president and cast themselves as leading Republican voices.
What could go wrong?
* STEVE KING TO EXERT EVEN MORE INFLUENCE: The New York Times also has an overview of rising GOP worry about the tone on immigration coming from far right voices in the party, including this:
Congressional leaders were privately relieved that many Republicans had left Washington for the Thanksgiving holiday before Mr. Obama announced plans for his address, reducing the availability of anti-immigration conservatives for cable-television bookers seeking reactions. But Mr. King purposely stayed: “I decided in an instant,” he told reporters. He also is convening an “Iowa Freedom Summit” in January to feature Republican presidential aspirants, taking advantage of his leverage as a representative of the state with the first nominating contest.
On imagines the 2016 GOP presidential contenders will likely be under pressure to commit to deporting all the people Obama’s action has shielded, yanking the party further right just in time for 2016.
* WILL DEMOCRATS SUPPORT OBAMA’S MOVE? An interesting bit of reporting from David Drucker:
Despite some misgivings, Democrats are almost uniformly on board. Privately, some Democrats are concerned about the legal basis for the moves provided by the White House. At the very least, they want to know how to explain the matter to concerned constituents. But they have concluded that they don’t have much to lose because they agree with Obama on the substance and don’t believe much can be accomplished legislatively during his final two years in office with Republicans in control of the full Congress.
I think you will see some red state Democrats defect, which could create problems for the political fight to come. But if this reporting is right, perhaps their ability to make trouble will be limited.
* DEM GROUP RUNS AD ON OBAMA’S MOVE: The Dem-allied Americans United for Change is up with a new ad on national cable that features Saint Ronald Reagan talking about his move to expand deportations, before transitioning to footage of Obama doing the same. The claim that this is rooted in precedent — as carried out by GOP presidents — will feature heavily in efforts to sell it to the American people.
* UNDOCUMENTED IMMIGRANTS EXPRESS RELIEF: Don’t miss Julia Preston’s account of undocumented immigrants watching Obama’s announcement last night with a sense of relief at no longer having to worry (temporarily, at least) about deportation. It’s easy to forget this amid all the political noise, but the whole point of this action — which Obama exercised belatedly, after years of pressure — is to make the deportation system more humane.
* THE BOTTOM LINE: Top Latino journalist Jorge Ramos sums it up in one tweet: “Millions woke up without fear in the U.S. for the first time in their lives.”