Sen. Marco Rubio of Florida offered Republicans a new reason to vote for immigration reform on Tuesday. Either legalize 11 million undocumented immigrants in exchange for more border security or President Obama will just legalize them on his own.
“I believe that this president tempted will be tempted, if nothing happens in Congress, to issue an executive order as he did for the DREAM Act kids a year ago, where he basically legalizes 11 million people by the sign of a pen,” Rubio said in an interview with WFLA.
It may sound like a far out scenario (Obama has presided over a record number of deportations, for one thing), but Rubio has a legitimate point.
After Congress failed to pass the DREAM Act, Obama issued an executive order in 2011 halting deportations for young undocumented immigrants as a stopgap measure. While the White House lacked the authority to grant full legal status or create a path to citizenship for those affected, the program – known as DACA – gave undocumented youth dramatic new freedom to live and work in the country without fear of removal.
Republicans cried foul, saying Obama had overstepped his authority. As recently as June, the overwhelming majority of the House GOP voted for an amendment by Congressman Steve King that would defund the deferral program. But if the president can exercise discretion in choosing not to prosecute DREAMers, he could in theory extend it to a wide swath of the undocumented population.
Obama, for his part, has downplayed the idea.
“I’m not a king,” he told Telemundo in January. “You know, my job as the head of the executive branch ultimately is to carry out the law. And, you know, when it comes to enforcement of our immigration laws, we’ve got some discretion. We can prioritize what we do. But we can’t simply ignore the law.”
If reform fails, however, the pressure to expand DACA will be enormous – at least enough to prevent the parents of DREAMers from being deported. Some immigrant rights groups, like the National Day Laborer Organizing Network, have long demanded a broad halt on deportations regardless of what Congress does, a position they reiterated on Tuesday.
If Obama went that route, the pushback from Congress would be severe and the order would undoubtedly face legal challenges. There’s no doubt the president would prefer to avoid such a fight. But Obama also denied he had the authority to protect DREAMers – until suddenly he did. Here’s how he handled a question on the topic at a Unvision town hall in 2010:
Obama: With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed – and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.
That does not mean, though, that we can’t make decisions, for example, to emphasize enforcement on those who’ve engaged in criminal activity. It also doesn’t mean that we can’t strongly advocate and propose legislation that would change the law in order to make it more fair, more just, and ultimately would help young people who are here trying to do the right thing and whose talents we want to embrace in order to succeed as a country.
So the president told Univision then that he had some leeway on enforcement, but ultimately couldn’t circumvent the law by stopping deportations. That sounds an awful lot like his legal opinion on the subject this year.
Politically, Rubio’s argument makes some sense. If Obama’s not going to deport the undocumented population either way, per Rubio’s claim, it makes sense to try and extract some demands from him through legislation. But there’s a downside too. Many Republicans say they’re concerned about the security components of a bill because they fear Obama or a future Democratic president will find some legal rationale to delay or derail their implementation. Democratic and Republican supporters of the bill insist that they can find ways to prevent that from happening, either by specifying a clear set of security measures or by tying legalization to ironclad border metrics. But Rubio’s claim could feed perceptions on the right that Obama can’t be trusted to enforce the law and thus will ignore even the toughest border deal.