National Journal
By James Oliphant
February 25, 2014
Sometime soon, the Obama administration will deport its 2 millionth immigrant, a record that vexes the liberals and activists who expected something better from this president. The aggressive approach to rounding up and sending off border-crossers has led to protests such as the one last week in front of the White House, in which leaders of the anti-removal movement were arrested in an act of civil disobedience as the crowd chanted, "Not one more, not one more," in English and Spanish.
For months now, President Obama has been telling activists like those, as well as reform groups and congressional Democrats, that he can't take executive action on immigration, even as House Republicans increasingly evince disinterest in moving a bill this year.
That message has been poorly received. It has struck progressive critics as odd that, in a year in which Obama has chosen to emphasize his power (pen, phone, yada, yada, yada) to act in the face of congressional paralysis, he would choose not to deal with perhaps the largest social and law-enforcement issue on his desk. And they see it as downright disingenuous for the president to claim he lacks the power that they know he possesses.
The White House is aware of all this. But the president and his aides have stayed almost relentlessly discouraging. Obama was heckled at an event in San Francisco in December when a student shouted that he had the power to reduce deportations. "Actually, I don't," the president responded—an odd thing for any chief executive to concede. As recently as the Democratic congressional retreat in Maryland, Obama underscored the limits on his authority.
Yet, there is a logic to the administration's approach. Despite the brave talk this year about taking unilateral action—and the recruitment of adviser John Podesta to make it a reality—the White House understands that Obama could hurt the chances of a bill making it out of the House if he moves on his own.
The GOP is already on high alert for that very thing, ready to again cast the president as power-mad dictator. The shifting enforcement of mandates under the Affordable Care Act has given Republicans some midterm-election leverage. This would compound the narrative.
Executive action, said Republican Rep. Adam Kinzinger of Illinois, breeds mistrust. "If the president signals that he is willing to go around Congress on immigration reform, it will deeply damage the chances that the House will be able to move forward with its own step-by-step reforms," Kinzinger, who favors reform, told National Journal.
He remains confident legislation can still get done this year, despite the recent pessimism from the speaker's office. And a House leadership aide echoed Kinzinger's assessment that progress remains possible.
In the meantime, the last thing the White House wants to do is take the focus off the GOP's divisions on immigration by pushing through a new deportation policy. Despite the protests last week, much of the grassroots anger over immigration remains directed at Republicans—and the administration would like to keep it that way. "The main thing people can do right now is put pressure on Republicans who have refused so far to act," Obama told the Spanish-language Univision network this month.
That has put many congressional Democrats and progressive advocates who have implored the president to act on deportations in a bind. They realize that executive action could poison the well, but they also worry about the real human cost of waiting for the GOP to move. Kevin Appleby, who directs migration and refugee policy for the U.S. Conference of Catholic Bishops, believes that Obama's acting alone "plays into the hands of tea-party activists," but he also warns that his organization could soon change its stance.
"There's a statute of limitations on that," Appleby said. If it becomes clear that Congress isn't going to act, then it will fall on the president to do something.
Indeed, some advocates believe Obama isn't being aggressive enough—that he can use the executive-action threat to force Republicans to cut a deal. "This is their last opportunity to put their fingerprints on the policy and take credit politically," said Frank Sharry, executive director of the pro-reform group America's Voice.
Obama, he said, is playing softball with the GOP by downplaying his power. "Of course, we would love him to play hardball," Sharry said, "but I gave up on that back in 2009."
Jessica Karp, a lawyer for the National Day Laborers Organizing Network, which helped organize the protest at the White House last week, said executive action would allow the president to "enter the negotiations from a position of power."
Her group has filed a rulemaking petition with the Homeland Security Department that challenges Obama's assertion that he lacks power to grant relief from deportations, citing as an example his administration's decision in 2012 to suspend enforcement of the law for "Dreamers"—children brought to the U.S. illegally by their parents. "He has the authority to expand that program to include other people," Karp said.
Authority and will are two different things. This isn't the first time the president has waited for the GOP to come around. Examples that spring to mind include health care reform, the budget sequester, and Syria. The Republicans never budged on any of those.
The White House is again hoping things will be different. But if things go south this year, as many expect, Obama will quickly fall under intense pressure from his base to take action in order to avoid going down in history as the Democrat who deported more immigrants than any other president in history.
It's a policy bomb that could be wired to detonate as early as this summer—right in the heat of the 2014 elections.
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