Douthat fears an imminent Obama power grab on immigration. In response, Greg Sargent talks to experts about the limits of executive power. Here’s an important point by attorney David Leopold, “former president of the American Immigration Lawyers Association and immigration reform advocate who has consulted with the White House on immigration law”:
Though many argue that [deferred action for childhood arrivals (DACA)] grants its beneficiaries work status, in fact, the regulation that grants work status to undocumented immigrants who have been granted deferred action predates DACA and applies to many other categories of people granted deferred action. The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization. It requires them to demonstrate economic necessity. That applied to anyone granted deferred action either individually or categorically.
Therefore, DACA did not create this authorization to work — and nor would its expansion. It simply created a new category extending an already existing work authorization for beneficiaries of deferred action. The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not a direct outgrowth or creation of either.
Beutler goes another round with Ross:
If DACA combines a lawful exercise of prosecutorial discretion with a lawful provision of work permits—and Greg Sargent’s expert sources make a very strong case that it does—then the question for Douthat is, where along the continuum between a million-or-so potential DACA beneficiaries and the (perhaps) five million beneficiaries of an expanded program would it transform into the “lawless” abomination he decried in his column?
The obvious answer to that question is: We can’t say until we see the details. All we know is that Obama is contemplating a program that’s different in degree, not necessarily in kind, from DACA. Which is why my original response to Douthat’s column posited that he had assumed too much. I still contend that he did.
I remain queasy, but somewhat more sympathetic to the legal case for executive action than before I understood the precise technicalities. I assume that the administration has done due diligence on all of this before it takes a leap in the dark.