The administration is examining how far it can go, legally and politically. Obama's immigration flip flop

President Barack Obama insisted for years that he had absolutely no legal authority — none whatsoever, zero, zilch — to slow deportations on a broad scale.

Forget everything he’s said.


Obama’s pledge to use his executive powers by the end of the summer marked both a dramatic reversal in rhetoric and a major strategic shift on immigration. The president is no longer emphasizing his own powerlessness but rather his determination “to fix as much of our immigration system as I can on my own, without Congress.”

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The administration is examining how far it can go, legally and politically, to protect millions of undocumented immigrants from deportation. Despite the flow of young Central American children across the southwestern border, Obama remains committed to taking significant action, according to senior advisers and advocates who have attended recent meetings with White House officials.

In other words, Obama has signaled that he intends to do exactly what he’s long said he’s unable to do.

“I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing,” Obama said last month in his Rose Garden announcement. “And in this situation, the failure of House Republicans to pass a darn bill is bad for our security, it’s bad for our economy, and it’s bad for our future.”

Even immigrant rights advocates, who were on the receiving end of the White House denials for years, were surprised by his abrupt and enthusiastic move toward executive action in June after House Speaker John Boehner (R-Ohio) ruled out a legislative overhaul of immigration this year. Activists had gotten so fed up in recent months that some tagged the president as the “ deporter-in-chief” and demanded that he shift immediately from a legislative strategy to an administrative one.

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“The way they talked about it was, ‘There’s nothing we can do, only Congress can solve it, we don’t have the authority,’” said Lorella Praeli, director of advocacy and policy for United We Dream. “That is very different from what they are saying today. It is completely different.”

The shift could be used by critics as an example of Obama saying one thing and doing something else, another “evolution,” in White House parlance, on a hot-button social issue. Some Republicans see it as fertile ground for advancing their midterm election strategy, which focuses on raising questions about the president’s credibility and competence.

“It brings into question, when he commits to other things, whether he will keep that commitment,” said Sen. John McCain (R-Ariz.), who worked closely with Obama on passing a Senate immigration overhaul bill last year. “Things in this town, to a large degree, are done on people’s commitments.”

But of all the challenges surrounding the decision, taking a hit for a change in position isn’t at the top of the White House’s list of concerns. Aides privately acknowledge that Obama has flip flopped — but for good reason, they insist.

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The president wanted to maintain pressure on Congress for as long as he could because legislation is the only way to provide permanent relief to undocumented immigrants, aides said. An executive order can be rescinded by Obama’s successors. He didn’t want to concede that he could take action on his own while legislation was still possible, but once it was no longer an option, there was little downside to changing course, the aides said.

“These executive actions are not a substitute for congressional action, in part, because they aren’t as far-reaching,” said White House press secretary Josh Earnest in an interview. “But the president is determined to do the right thing for the country and our economy by acting, within the bounds of the law, to reform our broken immigration system, consistent with the views expressed by the bipartisan coalition of law enforcement, faith and business leaders who back reform.”

Obama still views the legal limits as murky, aides said. It’s a major reason the review is taking so long — the administration wants the order to withstand the inevitable court challenge but needs to build a case for it.

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White House counsel Neil Eggleston and domestic policy adviser Cecilia Muñoz are hosting listening sessions with key players in the process, including attorneys for the AFL-CIO and the Service Employees International Union, according to sources familiar with the meetings.

The president has suggested privately that he would not go as far as extending temporary protections to all 11 million undocumented immigrants who would have qualified under the Senate bill. Instead, he’s weighing how to provide relief to subsets of the population based on family ties, longevity in the country or employment background. It’s unclear where he’ll draw the line, but advocates expect him to go far based on his initial statements that he wants to max out his legal authority.

This is a stark change from the previous 5½ years of his administration.

Obama has been heckled at public events, pressed during interviews and questioned in private at the White House about why he just won’t use his executive powers to protect millions from deportations. Sometimes he made clear that only legislation could provide relief for all undocumented immigrants, which is consistent with his current view. Other times he didn’t draw the distinction.

Either way, he always left the same impression: The law prohibits him from doing much on his own.

“There are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws. And often this argument is framed in moral terms: Why should we punish people who are just trying to earn a living?” Obama said in a July 2010 speech.

“I recognize the sense of compassion that drives this argument, but I believe such an indiscriminate approach would be both unwise and unfair. It would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration. And it would also ignore the millions of people around the world who are waiting in line to come here legally.”

Last November, Ju Hong, an undocumented immigrant from South Korea, yelled at the president during a San Francisco event: “You have a power to stop deportation for all undocumented immigrants in this country.”

“Actually I don’t,” Obama responded. “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws.”

A month later, Vice President Joe Biden said Obama’s options were limited.

“What I get all the time is, ‘Well, look, since the system is broken, and Congress won’t fix it, why don’t you just suspend everything?” Biden said. “The president doesn’t have the authority to do that.”

But in the Rose Garden on June 30, Obama didn’t dwell on the constraints of the law.

“So while I will continue to push House Republicans to drop the excuses and act — and I hope their constituents will too — America cannot wait forever for them to act,” Obama said. “And that’s why, today, I’m beginning a new effort to fix as much of our immigration system as I can on my own, without Congress.”

Frank Sharry, executive director of America’s Voice, said a close read of Obama’s previous statements provides wiggle room.

“If you look really carefully at what he says, he says, ‘I can’t do what the legislation does. I can’t go as far as you think I should go,’” Sharry said.

Still, Sharry added, “the impression he gives is, ‘I can’t do it.’”