The Times reports on the inner-workings of the Obama Administration’s legal justification for executive action of immigration.
Months before President Obama took executive action last week to reshape the nation’s immigration system, Jeh C. Johnson, the secretary of Homeland Security, quietly convened a small group of advisers to test the legal limits of the president’s powers.
Working in secrecy, Mr. Johnson’s team huddled for hours each day under orders to use “our legal authorities to the fullest extent” on a new immigration policy, a senior administration official said. Over the summer, Mr. Johnson and Mr. Obama pored over proposed changes together, eventually concluding that the president had the authority to enact changes that could affect millions of people and significantly alter the way immigration laws are enforced.
The article continues to explain the various iterations of the plan. At each stage, it was the President who told them to go further:
Mr. Johnson’s efforts, along with Mr. Obama’s rising frustration with Mr. Boehner and a well-funded advocacy community that relentlessly pressured the White House, led to the president’s prime-time address to the nation on Nov. 20, when he said he would shield as many as five million undocumented immigrants from deportation and allow many of them to work legally. But the roots of Mr. Obama’s speech, which nervous Democrats asked him to give only after the midterm elections, date back a full, tumultuous and angry year in Washington. …
In the meantime, Mr. Johnson’s review of the president’s legal authority was supposed to help resolve the issue. But his first attempt in May was a disappointment, White House officials said, because in the president’s view, he did not go far enough. The effort only sought to modify the guidance for immigration agents, and did not provide work permits or directly shield anyone from deportation.
And yet, with Republicans still struggling to move forward, the president’s Democratic allies on Capitol Hill reminded him that even Mr. Johnson’s tepid suggestions would probably derail any hopes for legislation.
Mr. Obama told Mr. Johnson to try again, and then announced that he would delay the results of the review until the end of the summer, hoping to give Mr. Boehner one last chance for action.
We also learn that DHS independently concluded that the law could not protect the 7 million who would have been covered by the immigration law.
He instructed Mr. Johnson to undertake a much broader examination of his executive authority, but the secretary and his team still concluded that Mr. Obama could not grant protections to seven million or more immigrants who might have qualified under an immigration bill passed by the Senate in 2013, as advocates had demanded. After consulting with Mr. Obama, they eventually decided on five million.
But one thing isn’t making sense. The report speaks only of legal analysts working for Secretary Johnsen DHS. It is not clear if this includes OLC. What makes this confusing is according to the OLC memo, DHS determined that parents of DACA beneficiaries could received deferred action. OLC told them, they could not do this. (This may be the 7 million mentioned above).
How can this history fit in with the timeline offered by the Times? My guess (what I suspected all along) was that DHS’s inquiry about extending benefits to the parents of DACA beneficiaries was a throwaway to the immigrant community. “Oh we wanted to, but we lacked the legal authority.” They knew all along they weren’t going to do this. But OLC makes clear that DACA is on really shaky legal footing. DHS authorized that policy, and not OLC, which provided only “oral” advice.