At last night’s debate, Bernie Sanders and Hillary Clinton got into an extended scuffle on immigration after he whacked her for supposedly wanting to send back the children who recently dominated the news after migrating unaccompanied from Central America. She denied this charge, pointing out that she wanted due process for them here, while also noting that full amnesty for them risked sending a message that might encourage others to send children on the dangerous journey northward.
But perhaps the most notable moment of the exchange was this, from Sanders:
“We’ve got 11 million undocumented people in this country. I have talked to some of the young kids with tears rolling down their cheeks, are scared to death that today they may or their parents may be deported.“I believe that we have got to pass comprehensive immigration reform, something that I strongly supported. I believe that we have got to move toward a path toward citizenship. I agree with President Obama who used executive orders to protect families because the Congress, the House was unable or refused to act. And in fact I would go further….“Somebody who is very fond of the president, agrees with him most of the time, I disagree with his recent deportation policies. And I would not support those. Bottom line is a path towards citizenship for 11 million undocumented people, if Congress doesn’t do the right thing, we use the executive orders of the president.”
This seems to come close to a promise to use executive action to defer the deportation of all of the undocumented immigrants who would be legalized under the legislative proposals Democrats have championed. (The Senate comprehensive immigration bill aspires to place 11 million on a path to legalization, but in practice would lead to legalization for closer to nine million people, by some estimates.) And indeed, this is what immigration advocates think they heard Sanders say last night.
“He seems to be promising deportation relief for some nine million undocumented immigrants through executive action,” Frank Sharry of America’s Voice tells me.
In saying this, Sanders confirms that he believes the president has significantly more executive authority to grant deportation relief than President Obama believes he has. Obama’s most recent executive action — which is being legally challenged by two dozen states and will come before the Supreme Court this spring — seeks to defer the deportations of some five million people who are the parents of children who are U.S. citizens or permanent residents. But the administration deliberately excluded parents of DREAMers — people who were brought here illegally as children — because administration lawyers thought going that far would be legally questionable.
Asked for clarification of his position, the Sanders campaign pointed to his previously released immigration plan, in which he vows to expand the President’s executive actions to cover as many as nine million people. Sanders’s quote yesterday is consistent with that.
However, Sanders’s deportation relief promise is newly relevant now. There is a renewed focus on the immigration issue, now that the Democratic primaries are heading to states with more diverse populations, such as Nevada, which has a large Latino population.
President Sanders would go significantly farther in using executive authority to grant deportation relief than Obama has tried to do — Sanders would extend it to granting relief to the parents of DREAMers and others. The Sanders campaign points to a letter signed by legal experts that argues the executive has very broad authority to defer deportations as an exercise of prosecutorial discretion.
However, Clinton has not gone as far as Sanders has in claiming such authority. While Clinton has said she will go farther than Obama will in using executive action, she has remained generally within the legal parameters the administration laid out for its own executive actions. Clinton has vowed to create new administrative processes to make it easier for the parents of DREAMers to apply for deferred action on a case-by-case basis. She has not said she thinks the next president should exercise the executive authority to expand Obama’s actions to cover them as a group, as Sanders is suggesting.
And so, we’ll now have a debate over the proper limits of executive authority in dealing with the undocumented population. Even if a Democrat is elected president, the House is all but certain to remain in GOP hands, which means there is a decent chance there won’t be any legislative reform anytime soon. So the debate over executive authority — how much flexibility the executive has in dealing with the 11 million — is not merely an academic one. This debate is flaring up in other ways: As Seung Min Kim recently reported, Sanders is escalating his criticism of an Obama administration enforcement program that, to critics, represents Obama’s misuse of executive authority to deal with the undocumented population.
“Now that it is clear Congress is broken for the foreseeable future, it is vital for candidates to stake out and vet their positions on executive action reforms,” Chris Newman, the Legal Director at the National Day Laborer Organizing Network, tells me.
The question of how much flexibility the executive has in dealing with the undocumented population is a real, concrete question, and Sanders’s vow to go significantly farther than Obama has is a real, concrete promise.
UPDATE: Immigration attorney David Leopold opines that Sanders’s vow of executive action amounts to “pandering,” while Post reporter Jerry Markon, who covers the immigration debate, doubts it would pass legal muster.