The argument is, basically, there’s nothing really new here, this is just an extension of the way we did things already, and as for that totally sweeping new thing associated with this kind of change but not with pre-existing practice, oh, that’s just a coincidence, it’s the result of longstanding legal norms, we have nothing to do with that, didn’t really even think about it when we made the call, look, a leopard!
The reality is that longstanding legal precedent (codified in the 1986 immigration reform, I believe, but extending earlier) does indeed allow the executive branch to grant work permits to people who receive deferred action … and that legal authority is, of course, one of the biggest reasons why activists wanted the administration to make a formal deferred-action move, rather than just circulating a memo on enforcement priorities and leaving matters there. There’s nothing accidental or unforeseen or non-central about the DACA/work permit combination, in other words; indeed, DACA explicitly created a new application system for work authorization — which, as Conn Carroll points out, is part of why this change, again supposedly just a codification of existing practice, has actually ended up snarling the system of green card and visa applications for people applying to live and work here through normal channels. And the fact that work permits can be made available once deferred action is invoked is precisely why an action on the scale of DACA — to say nothing, obviously, of the super-DACA currently being floated — represents such an aggressive use of presidential power, approaching a rewrite of the law.
Shikha Dalmia, on the other hand, defends the legality of the actions Obama is considering:
Margaret Stock, a Republican immigration lawyer and a Federalist Society member, notes that such [abuse of office] accusations don’t appreciate that all this is fully authorized by those laws. “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president,” she explains, a point also emphasized by the nonpartisan Congressional Research Service in its 2013 brief. “Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.” …
In fact, notes Stock, he could go even further and offer asylum to the Central American kids lining up at our borders, instead of sending them back as he has been promising to do. Section 207 of the INA gives him the authority to declare a humanitarian emergency and hand refugee status to all of them – and then some. And this wouldn’t be unprecedented, either.
The United States did this as part of Operation Pied Piper to accommodate fleeing children fromWorld War II and then Operation Pedro Pan in the 1960s to provide a safe haven to Cuban kids.
Putting the legal debate aside, Nyhan wonders “why Mr. Obama would engage in such a move before the election.” He remarks that “a broad executive action could provoke a backlash in the midterm elections that might be avoided with a move just a few months later”:
Given these risks, the politics of pre-election legalization seem inexplicable, creating an opening for elaborate bank-shot theories about Obama’s intentions. The columnist Charles Krauthammer floated a conspiracy theory along these lines Wednesday, suggesting on Fox News that Obama might be trying to “bait Republicans into impeachment as a way to save his party in the midterm elections.”
Such an outcome seems unlikely, but the comment illustrates just how much uncertainty there is over what Mr. Obama is doing or how Republicans — and voters — will react.