Obama's immigration amnesia
President Barack Obama tried to rewrite history by claiming that his position had not changed regarding legal authority for executive orders on immigration that he is now considering.
During a press conference in Brisbane, Australia, Obama was asked what had changed since he made comments in 2013 that he was “not king” and “not the emperor” in response to questions about stopping deportations and providing temporary legal status to undocumented workers — much as he is now contemplating.
Obama replied that his “position hasn’t changed” and that the questions then were about him unilaterally enacting comprehensive immigration changes similar to the Senate bill that passed in 2013, but stalled in the House. But those questions in early 2013 weren’t about a comprehensive immigration overhaul, they were about Obama taking the kinds of executive actions he is now mulling.
Here’s how the question was raised in Australia on Nov. 16:
Jim Avila of ABC News, Nov. 16: Following up on immigration — in 2010, when asked by immigration reform advocates to stop deportations and act alone on providing legal status for the undocumented, you said, “I’m President, I’m not king. I can’t do these things just by myself.” In 2013, you said, “I’m not the emperor of the United States. My job is to execute laws that are passed.” Mr. President, what has changed since then? And since you’ve now had a chance to talk since July with your legal advisors, what do you now believe are your limits so that you can continue to act as president and not as emperor or king?
Obama: Well, actually, my position hasn’t changed. When I was talking to the advocates, their interest was in me, through executive action, duplicating the legislation that was stalled in Congress. And getting a comprehensive deal of the sort that is in the Senate legislation, for example, does extend beyond my legal authorities. There are certain things I cannot do. There are certain limits to what falls within the realm of prosecutorial discretion in terms of how we apply existing immigration laws.
But the questions posed to Obama earlier were very specific. They asked the president whether he had the authority to do the very kinds of things he is considering now. For weeks, Obama has been saying that if Congress fails to act on immigration, he will “do everything I can lawfully with my executive authority to make sure that we don’t keep on making the system worse.” According to the New York Times, Obama plans to lift the threat of deportation from as many as 5 million immigrants in the country illegally — mainly the relatives of people already in the country legally — and to offer many of them work permits.
Obama’s action would not permanently change a person’s immigration status and would not provide a pathway to citizenship, as was proposed in the Senate immigration bill that stalled. Obama is correct that that kind of lasting, comprehensive immigration overhaul has to come through Congress. But that’s not what was asked of him in the interviews back in early 2013.
The “I’m not a king” comment came during an interview of Obama on Univision on Jan. 30, 2013.
Maria Elena Salinas of Univision: Now I know that you have reduced, this is another concern on Twitter, the number of deportations of non-criminals. However, in 2012 more than 184,000 non-criminals were deported. In the spirit of your push for immigration reform, would you consider a moratorium on deportations of non-criminals? Remember, these are your words: “This is not about policy. It’s about people.”
Obama: Well, I think it is important to remind everybody that, as I said I think previously, and I’m not a king. I am the head of the executive branch of government. I’m required to follow the law. And that’s what we’ve done. But what I’ve also said is, let’s make sure that we’re applying the law in a way that takes into account people’s humanity. That’s the reason that we moved forward on deferred action. Within the confines of the law we said, we have some discretion in terms of how we apply this law. The same is true with respect to the kinds of the length of time that people have to spend outside of the country when their spouses are already here for example.
The “I’m not the emperor of the United States” comment came during a Google Hangout interview two weeks later, on Feb. 14, 2013, (starting at the 18:42 mark).
Jacky Guerrero of California: Your administration has deported a record high number of 1.5 million undocumented immigrants, more than your predecessor. And I know your administration took some steps last year to protect unintended undocumented immigrants from being deported. However many people say that those efforts weren’t enough. What I’d like to know is what you’re going to do now until the time immigration reform is passed, to insure that more people aren’t being deported and families aren’t being broken apart.
Obama: Well, look Jacky, this is something that I’ve struggled with throughout my presidency. The problem is that, you know, I’m the president of the United States. I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.
And what that means is is that we have certain obligations to enforce the laws that are in place, even if we think that in many cases the results may be tragic. And what we have been able to do is to make sure that we’re focusing our enforcement resources on criminals, as opposed to somebody who’s here just trying to work and look after their families.
What we have tried to do is administratively reduce the burdens and hardships on families being separated. And what we’ve done is, obviously, pass the deferred action which made sure that the DREAMers, young people who were brought here and think of themselves as Americans, are American except for their papers, that they’re not deported.
Having said all that, we’ve kind of stretched our administrative flexibility as much as we can. And that’s why making sure we get comprehensive immigration reform done is so important.
In both cases, the president was asked about executive actions to remove the threat of deportations from a much larger group, to prevent the breakup of families — the very thing Obama is proposing to do now. Then, Obama said, “[W]e’ve kind of stretched our administrative flexibility as much as we can.” Now, he believes he has the legal authority to do it.
In a similar analysis of Obama’s claim that his “position hasn’t changed,” Washington Post Fact Checker Glenn Kessler noted two other instances in which Obama previously claimed he lacked the authority to extend a freeze of deportations to a larger class of immigrants in the country illegally, or to grant temporary status.
The first came in a Univision town hall meeting on March 28, 2011, in which Obama was asked if he could “grant temporary protective status, TPS, to undocumented students.” Obama said that he could not.
Obama, 2011: 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.
The other example cited by Kessler was an interview with Noticias Telemundo on Sept. 17, 2013, during which Obama was specifically asked if he would “at least consider unilaterally freezing the deportations for parents of deferred-action kids.” Again, Obama said he could not.
Obama, Sept. 17, 2013: My job in the executive branch is supposed to be to carry out the laws that are passed. Congress has said, here’s the law when it comes to those who are undocumented, and they allocate a whole bunch of money for enforcement.
Obama continued to say that he had made the legal argument that the government did not have the resources to deport so-called DREAMers — people who were brought to the U.S. illegally as young children. But he didn’t think it was legally possible to extend that policy beyond DREAMers.
“But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally,” Obama said. “So that’s not an option. I do get a little worried that advocates of immigration reform start losing heart and immediately thinking, well, somehow there’s an out here — if Congress doesn’t act, we will just have the president sign something and that will take care of it, and we won’t have to worry about it. What I have said is that there is a path to get this done and that is through Congress.”
According to the New York Times, White House officials insist the evolution of Obama’s comments reflects a change in emphasis, rather than a change in opinion, and that at the time Obama was focused on convincing Congress to pass comprehensive immigration legislation.
We take no position on whether Obama has the legal authority to enact the kinds of immigration changes he is considering via executive authority. Ultimately, that may have to be decided in federal courts (as Republicans have threatened a legal challenge). But then, Obama said he lacked the legal authority to suspend deportation of family members. Now, he says he has just such legal authority.