The New York Times has an outline of what appears to be the kind of executive action on immigration that the President has in mind if Congress fails to act by his self-imposed, and politically naive, end-of-the-year deadline:
WASHINGTON — President Obama will ignore angry protests from Republicans and announce as soon as next week a broad overhaul of the nation’s immigration enforcement system that will protect up to five million undocumented immigrants from the threat of deportation and provide many of them with work permits, according to administration officials who have direct knowledge of the plan.
Asserting his authority as president to enforce the nation’s laws with discretion, Mr. Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.
That part of Mr. Obama’s plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.
Extending protections to more undocumented immigrants who came to the United States as children, and to their parents, could affect an additional one million or more if they are included in the final plan that the president announces.
Mr. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, shift extra security resources to the nation’s southern border, revamp a controversial immigration enforcement program called Secure Communities, and provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history.
A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.
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Officials said one of the primary considerations for the president has been to take actions that can withstand the legal challenges that they expect will come quickly from Republicans. A senior administration official said lawyers had been working for months to make sure the president’s proposal would be “legally unassailable” when he presented it.
Most of the major elements of the president’s plan are based on longstanding legal precedents that give the executive branch the right to exercise “prosecutorial discretion” in how it enforces the laws. That was the basis of a 2012 decision to protect from deportation the so-called Dreamers, who came to the United States as young children. The new announcement will be based on a similar legal theory, officials said.
The White House expects a chorus of outside legal experts to back it up once Mr. Obama makes the plan official. In several “listening sessions” at the White House over the last year, immigration activists came armed with legal briefs, and White House officials believe those arguments will quickly form the basis of the public defense of his actions.
Without seeing exactly what it is the President is proposing, I’m not going to comment on the legal issues involved or the question of whether or not he has the legal authority to do what he is apparently thinking of doing here. As a general rule, though, it is true that the immigration laws that Congress has passed give the President, through Immigration and Customs Enforcement and the other agencies charged with enforcing the nation’s immigration laws, a significant amount of discretion in deciding how to handle individual cases, as well as the authority to delay enforcement of deportation proceedings against certain people or groups of people. This is the kind of prosecutorial discretion that, for example, allows the Administration to decide to give priority to cases involving violent felons and repeat offenders while allowing some degree of temporary amnesty for others. This is the legal justification behind the Deferred Action for Childhood Arrivals program that was announced in 2012, for example, and based on the description above it appears that the President’s contemplated program would be identical to that program in many ways, although it would obviously apply to a much larger group of people. Given that, and again pending more details on exactly what it is the President is planning to do and what legal arguments the White House is relying upon in favor of that action, I’d anticipate that it is unlikely that Congressional Republicans will challenge the legal basis of the action if the President goes forward.
Whether the program is legal, of course, is only half of the equation, of course. The other half, and arguably one that will really matter in determining the relationship between the President and the new Congress going forward. As I have already noted, almost any kind of executive action that is taken before the new Congress even has a chance to consider the possibility of acting on immigration reform would seem to virtually guarantee that it will be impossible to get any work done in that area for the remainder of President Obama’s time in office. Additionally, it is likely to inflame the Republican base, which in turn could end up pushing Congressional Republicans even further to the right not only on immigration but on a whole host of other issues, a step which would be in direct opposition to the party’s obvious need to keep an eye on not alienating the vast middle of American politics, which it will need in order to be competitive in 2016 and beyond. Finally, it is likely to provoke the GOP into some kind of actions, although Republicans still seem to be debating exactly how to react to something they now see as inevitable.
As Chris Cillizza notes, though, that, along with a longer term play for the Latino vote, may be exactly what the President has in mind:
Obama knows that. And it would seem he doesn’t care. Or rather, he has made the calculation that the chances of genuine bipartisanship on virtually anything was so low in the first place that it didn’t make sense to not do what he believes is the right thing. As I’ve written before, the post-grand-bargain-collapse version of Obama is far less willing to extend his hand to Republicans — having, in his estimation, had it bitten so many times before. Obama views the “now the well is poisoned” point being made by Republicans as laughable.
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This move is, given the Republicans’ strongly stated opposition to it, a bit of an act of provocation on the part of Obama. And, many Democratic strategists hope/believe that conservatives in the House and Senate will react vociferously to it — and, in so doing, damage the already-not-so-great Republican brand with Hispanics (and voters more generally). Democrats remain convinced that the 2014 election proved nothing about how the country feels about Republicans and, that by exposing some of the elements within the party that GOP leaders have worked to keep quiet in recent months, they can regain the political momentum lost on Nov. 4.
Longer term, the hope in Obama world is that an executive order further cements the Democratic Party as the exclusive (or close to it) home for Hispanic voters. (An aggressive response to the Obama executive order by Republicans — particularly if it veers from talking about Obama into talking about the Latino community in a negative way — could well help that process along too.) Democratic House candidates won the Hispanic vote 62 percent to 38 percent in 2014, according to national exit polls. That’s actually a considerable improvement from the 29 percent of the Latino vote Republican nominee Mitt Romney got in 2012.
There is real long-term political danger here for Republicans. Remember that in the wake of Romney’s defeat, the Republican National Committee commissioned an autopsy to diagnose what went wrong for their side — and how to fix it. One of the central conclusions of that document was that Republicans needed to be for some sort of comprehensive immigration reform in order to take that issue off the table for Hispanics, and allow the GOP to talk to that community about other things.
Obama is moving a major chess piece with his executive order. Republicans must be careful with their countermove. It will have implications that last well beyond 2014 — or even 2016.
All of this isn’t without political risk for the President and the Democrats, of course. Polling on the immigration issue does not necessarily give the advantage to one party or the other. While there is at least some indication that the American public supports the kind of comprehensive approach to reform that was embodied in the now basically dead bill that was passed in the Senate in 2013, there is also strong support for the idea of enhanced border security and and opposition to the idea of blanket amnesty for people who are here illegally. Other polling has indicated public distrust, at the very least, of the kind of go it alone executive action that the President is contemplated here Instead, as with a whole host of other issues, the American public seems to clearly prefer that immigration reform be something that the President and Congress work on together. Obviously, if the President can from his executive action in reference to a Congress that has failed to act on the issue for too long, he may be able to overcome that public skepticism of executive action. However, it’s also entirely possible, and plausible, that the GOP could win that side of the battle for public opinion by characterizing the Presidents actions as another example of executive overreach, which the public has viewed with disfavor since the President’s predecessor was in office, Negative public reaction may not mean much to a President who will be leaving in office in twenty-six months and will never stand for election again, but it could have real consequences for the President’s party heading toward 2016. Additionally, negative public reaction here could impact what the President is able to get done for the remainder of his Presidency, and at the very least will guarantee a bad relationship with Congress. That last part is probably going to happen anyway of course notwithstanding all the feel good rhetoric we’ve heard since Election Day, but if the President is seen as the one responsible for it then that’s going to benefit the GOP to at least some extent.
In the end, if I had to take bets about which side will end up overreacting to the point that they damage themselves politically I suppose I’d pick the GOP only because they have shown themselves to be quite skilled at shooting their own foot time after time since the President took office. Nonetheless, the President would be taking some big political risks here and there’s no guarantee that it will turn out to his benefit in the end.
