Obama's Order Sets Up Campaign-Season Battle Over Immigration

President Obama spun the campaign focus back to immigration today with a deftly timed order that puts in place deportation protections for young illegal immigrants in the face of a stalled DREAM Act.


Under the new rules effective immediately, those who demonstrate they meet the following criteria will be eligible for a two-year deferment from any immigration enforcement action and be eligible to apply for work authorization: came to the U.S. under age 16, have continuously resided here for 5 years, not older than 30, currently in school or have graduated from high school or have been honorably discharged from the armed forces, and have not been convicted of a felony or “significant” misdemeanor.

“The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship,” the morning DHS announcement stated. “Only the Congress, acting through its legislative authority, can confer these rights.”

And it’s just that which had much of the Hill up in arms over the new policy.

Janet Napolitano told reporters in a morning conference call that the move helps ensure that future immigration enforcement is focused more on high-risk illegal immigrants, defined as those who have committed crimes such as theft or assault and those who have repeatedly crossed the border.

“This is not immunity, this is not amnesty; it is an exercise of discretion,” she said, calling it “prosecutorial discretion” that is within the bounds of the law.

“I continue to urge Congress to pass the DREAM Act and re-examine our immigration system as a whole,” Napolitano said. “We should not forget that we are a nation of laws and a nation of immigrants.”


However, while the administration framed it as a decision thoughtfully planned since the department received guidelines in 2010 for the use of prosecutorial discretion, the rules were announced without the mechanism in place yet to process the potentially 800,000 eligible applicants. A senior administration official said today that it would take about 60 days to get the application mechanism up and running.

Despite this suggestion of being a rush decision, a senior administration official said that the deferment action was “just the next step in the use of prosecutorial discretion.”

“We don’t consider this a permanent solution for anyone,” one official said as the administration used the announcement to launch fresh calls for Congress to pass the DREAM Act. “Presumably some future administration can make a decision on this population.”

If Mitt Romney won election in November, he could reverse the order — though that would not affect any two-year stays granted between now and then. With a potential shift in policy on the horizon, the administration officials were asked what incentive young illegal immigrants not yet discovered by authorities would have to come out of the shadows.

“I wouldn’t say we are encouraging people to step forward,” one official said, adding it was a question “best directed to the community affected” by the new rules.


The rules bear hints of recent Republican DREAM Act alternatives offered by Rep. David Rivera (R-Fla.) and a forthcoming proposal by Sen. Marco Rubio (R-Fla.) — bills that have threatened to set up an intraparty clash with the anti-illegal-immigrants stalwarts in the GOP.

But Obama’s move is also clearly an attempt to steal the spotlight from these alternatives.

Rivera’s bill, introduced two weeks ago with a student who has been facing a deportation order, has the same age and length of residency requirements as the DHS rules. It’s stricter in that it requires admittance to an accredited four-year college. Upon graduation, a student could apply for a five-year visa renewal, followed by applying for permanent residency and eventually citizenship.

Rubio’s plan, which is due by the end of the summer, takes a “very different approach” to Rivera’s, in the words of the senator. It would not include a path to citizenship while giving illegal immigrant students a visa to stay in the U.S.

The Florida senator, who could become No. 2 on a ticket with DREAM Act opponent Romney, in a statement today focused on the means by which the administration implemented the changes.

“There is broad support for the idea that we should figure out a way to help kids who are undocumented through no fault of their own, but there is also broad consensus that it should be done in a way that does not encourage illegal immigration in the future. This is a difficult balance to strike, one that this new policy, imposed by executive order, will make harder to achieve in the long run,” Rubio said.


“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,” he added. “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.”

Nearly an hour late for his Rose Garden press conference to announce the change today, Obama noted the times that Republicans had blocked the DREAM Act leading up to his order.

“I’ve said time and time and time again to Congress, ‘Send me the DREAM Act, put it on my desk and I will sign it right away,'” Obama said. “It makes no sense to expel talented young people who for all intents and purposes are Americans — they’ve been raised as Americans, understand themselves to be part of this country — to expel these young people who want to staff our labs or start new businesses or defend our country simply because of the actions of their parents, or because of the inaction of politicians.”

“In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places,” he added.

Interrupt by questions twice during his speech — and not taking any questions from the assembled press at the end — the president reiterated Napolitano’s statements that the order is not amnesty or immunity.


“I didn’t ask for an argument,” Obama fired at the second interruption.

But Republicans made clear that the president faces an argument over his order on Capitol Hill.

The ranking member of the Senate Judiciary Committee called the order “an affront to the process of representative government by circumventing Congress and with a directive he may not have the authority to execute.”

Sen. Chuck Grassley (R-Iowa) added that the White House had assured Congress that it would consider individuals for deferred status on a case-by-case basis instead of implementing a broad program.

“It seems the president has put election-year politics above responsible policies,” he said. “On top of providing amnesty to those under 30 years old, the administration now will be granting work authorizations to illegal immigrants at the same time young Americans face record-high unemployment rates.”

Sen. Lindsey Graham (R-S.C.) issued a series of tweets criticizing the president’s move. “President Obama’s attempt to go around Congress and the American people is at best unwise and possibly illegal,” he said. “‘Hope’ and ‘Change’ have become bait-and-switch.”

“President Obama, an ex constitutional law professor, whose favorite word is audacity, is prepared to violate the principles of Constitutional Law that he taught,” said Rep. Steve King (R-Iowa).


Democrats predictably praised the new immigration rules. “For all the young people who call this country their home but have been unable to fulfill their dreams, I am profoundly grateful to the President and the Administration for suspending the deportation of Dreamers,” said Sen. Robert Menendez (R-N.J.). “For these young men and women who want to become doctors, teachers, police officers and soldiers, this announcement will change their lives forever.”

Sen. Chris Coons (D-Del.) said “this new strategy aspires to the ideals of the DREAM Act” and is a “bold move” by Obama and Napolitano.

“I hope Republicans, especially those who have voiced a willingness to help these young people, will support the administration’s directive,” Senate Majority Leader Harry Reid (D-Nev.) said. “The president can only do so much administratively and this measure is temporary and limited by current law. The onus is now on Congress to permanently fix our broken immigration system.”

Cornered by recent polling that shows overwhelming support for the DREAM Act among Latinos as both parties fight for the growing Hispanic vote, Republicans signaled today that in addition to opposing the order on constitutional grounds they would frame the policy switch as an economic issue.

“The president’s action today is a direct slap at the American worker. By giving 800,000 illegal immigrants work permits with no time limit or expiration date, he is telling American workers – millions of whom are unemployed through no fault of their own – that he does not care about their plight. Instead of working with Congress to help the private sector create jobs, the President continues to promote policies that rob Americans of their livelihoods,” said Rep. Elton Gallegly (R-Calif.), chairman of the House Judiciary Subcommittee on Immigration Policy and Enforcement.


“Under the Constitution it is Congress’ job to create immigration policy and it is the president’s job to enforce it. The House and Senate have repeatedly rejected the DREAM Act,” Gallegly added. “Mr. President, enforce the law and stop making it harder for American workers to take care of their families.”


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