Government’s Sur-Reply Part 12: Explaining The President’s Statements on the Limits of Executive Power

February 7th, 2015

In the lead-up to NFIB v. Sebelius, one statement that lived to haunt the President was his quip to George Stephanopoulos that Obamcare was “not a tax” It even came up during oral arguments before the Court, as the pinned Solicitor General tried to evade the question, as I recount in Unprecedented:

Justice Scalia was not persuaded that the penalty was a tax for any purposes. On the next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the president, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax. A new tax must logically be a tax increase.

In response to the President’s moment of candor, the Solicitor General was only able to save the law by explaining that it actually was a tax.

After NFIB v. Sebelius was decided, and Obamacare actually went into effect, another one of the President’s oft-repeated statements haunted him big time–“If you like your plan, you can keep your plan.” This was always an abject lie, as Obamacare forced people to leave non-compliant plans, and in the months leading up to the rollout of, the Administration took steps to make it even harder to renew old plans. This whopper was voted the Politifact Lie of the Year.

In response to this lack of candor, the Obama Administration implemented the “administrative fix,” which waived the individual mandate’s penalty for millions, and grandfathered plans that were noncompliant under federal law.

I think we can now add a third to this list of Presidential talking points. With respect to his immigration executive action the President said quite clearly “I just took an action to change the law.” This was absolutely the truth. He did change the law–or more precisely, suspend it. Now, this statement was quoted several times by the Texas suit against the action. Texas also quoted at length statements made by the President that he lacked the power to defer the deportations.

Once again, the DOJ has to defend this statement. In its sur-reply, it writes:

Plaintiffs mischaracterize the President’s prior statements concerning the Executive’s inability to grant a non-statutory path to lawful immigration status (which the Secretary has not done here) as implying that the immigration laws and other congressional enactments do not confer discretion upon the Secretary to prioritize removals, including through the use of deferred action. But no such concession has been made, and Supreme Court precedent makes clear that such discretion continues to exist. See Arizona, 132 S. Ct. at 2499; AAADC, 525 U.S. at 483-84.

Oh, “such concession[s]” were made. These statements were made directly in the context of whether the President could use deferred action to stop deportations.

If I may quote at some length from Part II, the President directly stated that he could not defer the deportations of the parents of U.S. Citizens.

DAPA bears a similar pedigree to DACA. From 2012 through 2014, the Congress considered comprehensive immigration reform. During this time, the President consistently stated that he lacked the authority to defer deportations of more aliens. Further, he reasserted that he pushed the boundaries as far as he could with DACA. His comments ranged from the general, to the very specific. First, he explained that the Constitution imposes limits on what he can do as President: “[A]s the head of the executive branch, there’s a limit to what I can do. . . . [U]ntil we have a law in place that provides a pathway for legalization and/or citizenship for the folks in question, we’re going to continue to be bound by the law.”[1]

Second, during the Presidential debate that said he could not stretch his executive powers any further beyond DACA: “we’re also a nation of laws. So what I’ve said is, we need to fix a broken immigration system. And I’ve done everything that I can on my own.”[2] Third, the President directly refuted the notion that he could defer removals to protect families. During a Google+ Hangout on immigration reform, a question was asked about whether the President could halt deportations to prevent breaking up families. The President replied “This is something I’ve struggled with throughout my presidency. The problem is that you know I’m the president of the United States, I’m not the emperor of the United States. My job is to execute the laws that are passed. Congress has not changed what I consider to be a broken immigration system. And what that means is that we have certain obligations to enforce the laws that are in place.”[3] However, with DACA the President stressed, “we’ve kind of stretched our administrative flexibility as much as we can.”[4]

Fourth, in an interview, the President was asked if he would “consider unilaterally freezing deportations for the parents of deferred action kids.”[5] The President replied that the DREAM Act could not be expanded beyond “young people who have basically grown up here . . . if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option.”[6]

Fifth, during a town hall meeting, the President was asked whether he could do for an “undocumented mother of three” what he “did for the dreamers.” The President replied that he could not extend the relief given to the dreamers to these parents:

I’m not a king. . . . [W]e can’t simply ignore the law. When it comes to the dreamers we were able to identify that group. . . . But to sort through all the possible cases of everybody who might have a sympathetic story to tell is very difficult to do. This is why we need comprehensive immigration reform. . . . [I]f this was an issue that I could do unilaterally I would have done it a long time ago. . . . The way our system works is Congress has to pass legislation. I then get an opportunity to sign and implement it.[7]

However DAPA accomplished exactly what the question wanted—defer deportations for the parents of citizen-children. More directly the President was asked directly whether he could halt deportations of non-criminals—another category of aliens protected by DAPA. He replied, “I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.”[8]

Sixth, during a speech on immigration reform in San Francisco, hecklers called out, at least seven times, “Stop deportations!” The President replied:

[I]f 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. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal.[9]

The President’s seventh, and most pointed comments, came on March 6, 2014, during an appearance on Univision.[10] The host asked him about “Guadalupe Stallone from California, [who] is undocumented. However, her sons are citizens.”[11] She feared deportation, even though her children could remain in the country. The President explained that he could not help Ms. Stallone. “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do.”[12] DACA, he admitted “already stretched my administrative capacity very far.”[13] The President could no further because “at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’”[14] Citing Congressional power to distribute funding, the President reiterated, “I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.”[15] Under DAPA, Ms. Stallone’s deportation would be deferred because she is a mother of minor citizen children. This is true, even though as the President explained, Congress imposed laws, and funded the agencies, so the President had to enforce the law.

However, leading up to November 2014, the President’s position evolved from “impossible” to “absolutely.”

[1] TRANSCRIPT: President Obama’s Remarks at Univision Town Hall (Sep. 20, 2012),

[2] Presidential Debate in Hempstead, New York (Oct. 16, 2012), (emphasis added).

[3] President Obama on Immigration Reform in a Google+ Hangout — Part 1 (Feb. 21, 2013),

[4] President Obama on Immigration Reform in a Google+ Hangout — Part 1 (Feb. 21, 2013),

[5] Obama: Halting Deportations “Not An Option,” Would Be “Ignoring The Law,” Real Clear Politics (Sept. 17, 2013), Ultimately, the OLC Opinion would find the President could not do this.

[6] Obama: Halting Deportations “Not An Option,” Would Be “Ignoring The Law,” Real Clear Politics (Sept. 17, 2013),

[7] Obama tells Telemundo he hopes for immigration overhaul within 6 months (Jan. 30, 2013),

[8] Glenn Kessler, Obama’s royal flip-flop on using executive action on illegal immigration, Washington Post Fact-Checker (Nov. 18, 2014),

[9] Remarks by the President on Immigration Reform — San Francisco, CA, (Nov. 25, 2013),

[10] Univision News Transcript: Interview with President Barack Obama, Univision (March 5, 2014),

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.