He Can't Wait

June 15, 2012

President Obama announced a radical shift in federal immigration policy on Friday in what many see as a desperate attempt to resurrect his struggling reelection campaign by catering to a key Democratic constituency.

The president announced that his administration would immediately begin offering work permits to young illegal immigrants who meet a certain set of criteria, completely bypassing Congress, where lawmakers have been unable to agree on a comprehensive immigration reform bill.

Senior administration officials told reporters on a conference call Friday that as many as 800,000 illegal immigrants could be affected by the change in policy, but dismissed suggestions that the move constituted a de facto amnesty.

"Let's be clear, this is not amnesty, this is not immunity, this is not a path to citizenship, this is not a permanent fix," Obama said from the White House Rose Garden. "This is the right thing to do."

Obama indicated that the move was necessary because Congress had not yet passed the DREAM Act, controversial legislation that would establish a "path to citizenship" for young illegal immigrants.

Department of Homeland Security Secretary Janet Napolitano said the policy was "consistent with our existing use of prosecutorial discretion" with respect to immigration enforcement and "well within the framework of our existing laws."

However, a number of legal and political analysts questioned the president’s legal and constitutional authority to ordain such a policy without Congressional approval. "Can this be authentic? It seems impossible under law," wrote conservative commentator David Frum.

"I don’t totally get how the President can do this through executive order," said former White House economic adviser Jared Bernstein.

"That’s not how checks and balances work," said Mark Krikorian of the Center for Immigration Studies. "He’s basically saying ‘Congress didn’t obey me, therefore I went ahead and did what I wanted to do anyway.’ What kind of precedent does this set? Who gave him that right to do that?"

David Rivkin, a former Justice Department and White House counsel, rejected the administration’s claim to prosecutorial discretion, saying the new policy was "completely unconstitutional."

"A wholesale refusal to enforce a valid law goes well beyond the president’s discretion," he told the Washington Free Beacon. "It completely upsets the balance of power."

Republican lawmakers voiced similar concerns. "President Obama’s attempt to go around Congress and the American people is at best unwise and possibly illegal," wrote Sen. Lindsey Graham (R., S.C.), who has worked with Senate Democrats in an effort to forge a bipartisan consensus on immigration reform.

Sen. Chuck Grassley (R., Iowa), ranking member on the Senate Judicial Committee, said the president "may not have the authority to execute" the change. Rep. Steve King (R., Iowa) said he was planning to sue the administration over the policy change.

Even Sen. Marco Rubio (R., Fla.), the prominent Hispanic lawmaker and potential GOP vice presidential nominee who has been working on a bill that would enact policy changes similar to those ordered by the president, criticized Obama’s use of executive authority.

"Today’s announcement will be welcome news for many of these kids desperate for an answer, but it is a short term answer to a long term problem," Rubio said in statement. "And by once again ignoring the Constitution and going around Congress, this short term policy will make it harder to find a balanced and responsible long term one."

Obama himself has expressed a reluctance to "bypass Congress and change the laws on my own." In a speech to The National Council of La Raza last July, he said the idea was "very tempting," but "that’s not how our system works."

"There is no magic wand. This requires action by Congress," a White House official told the New York Times in April.

The president’s sudden reversal was clearly an effort to change the subject—and cater to Hispanic voters—following a stretch of bad news about the economy, Krikorian told the Free Beacon. "Apparently when your campaign is in desperate straits you disregard the things you said a year ago," he said.

Frum concurred, writing: "Well, if you can’t deliver an economic recovery, ethnic politics must be the fallback plan."

It is not clear how much Obama stands to benefit politically from the decision. Though Hispanics comprise a growing portion of the national population, that growth has not yet been reflected at the ballot box. The Hispanic share of the electorate rose from 8 percent to 9 percent between 2004 and 2008, but returned to 8 percent in 2010.

Krikorian said Obama’s decision could backfire politically. "I think it could turn off a lot of people who would be sympathetic to the DREAM Act by overstepping his authority," he said. "Sure, the bootlickers from National Council of La Raza will all be happy about it, but will any Hispanic voters who otherwise wouldn't vote for him vote for him now? I’m not sure."