Salon
By Daniel Denvir
February 12, 2016
At
last night’s debate, Bernie Sanders and Hillary Clinton got into an
extended scuffle on immigration after he whacked her for supposedly
wanting to send back the children
who recently dominated the news after migrating unaccompanied from
Central America. She denied this charge, pointing out that she wanted
due process for them here, while also noting that full amnesty for them
risked sending a message that might encourage others
to send children on the dangerous journey northward.
But perhaps the most notable moment of the exchange was this, from Sanders:
“We’ve
got 11 million undocumented people in this country. I have talked to
some of the young kids with tears rolling down their cheeks, are scared
to death that today
they may or their parents may be deported.
“I
believe that we have got to pass comprehensive immigration reform,
something that I strongly supported. I believe that we have got to move
toward a path toward citizenship.
I agree with President Obama who used executive orders to protect
families because the Congress, the House was unable or refused to act.
And in fact I would go further….
“Somebody
who is very fond of the president, agrees with him most of the time, I
disagree with his recent deportation policies. And I would not support
those. Bottom line
is a path towards citizenship for 11 million undocumented people, if
Congress doesn’t do the right thing, we use the executive orders of the
president.”
This
seems to come close to a promise to use executive action to defer the
deportation of all of the undocumented immigrants who would be legalized
under the legislative
proposals Democrats have championed. (The Senate comprehensive
immigration bill aspires to place 11 million on a path to legalization,
but in practice would lead to legalization for closer to nine million
people, by some estimates.) And indeed, this is what
immigration advocates think they heard Sanders say last night.
“He
seems to be promising deportation relief for some nine million
undocumented immigrants through executive action,” Frank Sharry of
America’s Voice tells me.
In
saying this, Sanders confirms that he believes the president has
significantly more executive authority to grant deportation relief than
President Obama believes he
has. Obama’s most recent executive action — which is being legally
challenged by two dozen states and will come before the Supreme Court
this spring — seeks to defer the deportations of some five million
people who are the parents of children who are U.S. citizens or permanent residents. But the administration deliberately
excluded parents of DREAMers — people who were brought here illegally as
children — because administration lawyers thought going that far would
be legally questionable.
Asked
for clarification of his position, the Sanders campaign pointed to his
previously released immigration plan, in which he vows to expand the
President’s executive
actions to cover as many as nine million people. Sanders’s quote
yesterday is consistent with that.
However,
Sanders’s deportation relief promise is newly relevant now. There is a
renewed focus on the immigration issue, now that the Democratic
primaries are heading to
states with more diverse populations, such as Nevada, which has a large
Latino population.
President
Sanders would go significantly farther in using executive authority to
grant deportation relief than Obama has tried to do — Sanders would
extend it to granting
relief to the parents of DREAMers and others. The Sanders campaign
points to a letter signed by legal experts that argues the executive has
very broad authority to defer deportations as an exercise of
prosecutorial discretion.
However,
Clinton has not gone as far as Sanders has in claiming such authority.
While Clinton has said she will go farther than Obama will in using
executive action, she
has remained generally within the legal parameters the administration
laid out for its own executive actions. Clinton has vowed to create new
administrative processes to make it easier for the parents of DREAMers
to apply for deferred action on a case-by-case
basis. She has not said she thinks the next president should exercise
the executive authority to expand Obama’s actions to cover them as a
group, as Sanders is suggesting.
And
so, we’ll now have a debate over the proper limits of executive
authority in dealing with the undocumented population. Even if a
Democrat is elected president, the
House is all but certain to remain in GOP hands, which means there is a
decent chance there won’t be any legislative reform anytime soon. So
the debate over executive authority — how much flexibility the executive
has in dealing with the 11 million — is not
merely an academic one. This debate is flaring up in other ways: As
Seung Min Kim recently reported, Sanders is escalating his criticism of
an Obama administration enforcement program that, to critics, represents
Obama’s misuse of executive authority to deal
with the undocumented population.
“Now
that it is clear Congress is broken for the foreseeable future, it is
vital for candidates to stake out and vet their positions on executive
action reforms,” Chris
Newman, the Legal Director at the National Day Laborer Organizing
Network, tells me.
The
question of how much flexibility the executive has in dealing with the
undocumented population is a real, concrete question, and Sanders’s vow
to go significantly
farther than Obama has is a real, concrete promise.
***************************************************************
UPDATE:
Immigration attorney David Leopold opines that Sanders’s vow of
executive action amounts to “pandering,” while Post reporter Jerry
Markon, who covers the immigration
debate, doubts it would pass legal muster.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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