By Mike Lillis - 11-15-14 13:18 PM EST
Congress returned to Washington this week to find a Capitol transformed by the GOP's midterm wave and a bicameral scramble to approve an oil pipeline that few would have predicted just days earlier.
But for all the debate over Keystone politics and the election tsunami, it was the lingering promise of executive action to reduce deportations that's sparked the greatest intrigue – and most threatened to shake-up Congress in the lame duck and beyond.
"What I’m not going to do is just wait," a defiant President Obama said from the White House the day following the elections.
The announcement has thrilled Democrats, infuriated Republicans and relaunched a debate over executive power that's already spun talk of new lawsuits against the White House, new chatter of impeaching the president and new threats of another government shutdown – issues that are sure to reverberate right through the 2016 presidential election.
The complicated debate hinges on a simple question: Does Obama have the legal authority to halt deportations and grant work permits for millions of people living in the country illegally?
In 2012, the Homeland Security Department (DHS) adopted a program – the Deferred Action for Childhood Arrivals (DACA) initiative – which provides two-year work visas to qualified illegal immigrants brought to the country as children. Multiple news outlets this week have reported that Obama is now eying what is essentially an expansion of that program to include a much broader swath of the illegal immigrant community, including parents of kids who are U.S. citizens, legal residents or DACA beneficiaries.
“I indicated to Speaker Boehner several months ago that, if in fact Congress failed to act, I would use all the lawful authority that I possess to try to make the system work better,” Obama said Friday during a visit to Burma. "That's going to happen before the end of the year."
What remains in dispute is the scope of his "lawful authority." And both sides are claiming the legal high ground.
In the eyes of Republicans, such unilateral changes represent an abuse of executive authority and trampling on the separation of powers outlined by the Constitution. And the warnings from GOP leaders have been terse.
House Speaker John Boehner (R-Ohio) said executive action would "poison the well" of bipartisanship heading into the 114th Congress; Senate Minority Leader Mitch McConnell (R-Ky) said such moves would be like “waving a red flag in front of a bull;” and Sen. Jeff Sessions (R-Ala.) is lobbying fellow Republicans to sink any long-term government spending package that doesn't include language to defund any new lenient policies Obama adopts – a position that potentially sets up a game of government-shutdown chicken with Obama.
"Voters sent Congress a Republican majority to protect them — and their borders — from the president’s unlawful executive amnesty," Sessions said Friday. "A long-term funding bill that does not deal with President Obama’s unconstitutional overreach, adopted before a single newly elected Republican is sworn-in, would be to acquiesce to the president’s unlawful action."
Across the aisle, the view is very different. In the eyes of Obama and the Democrats, the president has not only the clear legal authority to expand DACA to more immigrants, but also the advantage of precedent set by every administration over the last half century.
To make their case, Reps. Nancy Pelosi (D-Calif.), Luis Gutierrez (D-Ill.) and Zoe Lofgren (D-Calif.) have compiled a list of unilateral immigration reforms under presidents as diverse Richard Nixon, Ronald Reagan and Bill Clinton.
"They [Republicans] are saying to the president, 'Don't use your executive authority.' Suppose he turned to us, and said, 'Don't use your legislative authority,'" Pelosi, the House minority leaders, said Thursday. "That's what presidents do. They have executive authority."
Stephen Legomsky, who was the chief counsel at the DHS' Citizenship and Immigration Services branch when the agency launched DACA, agreed. He argued that, on the statutory level, the power of the president to defer action has been written into federal immigration law for more than 25 years. As for the broader constitutional question, he said Congress's perennial underfunding of immigration enforcement efforts leaves the president "no practical alternative" but to ignore many cases.
"Every single year Congress knowingly – I would emphasize knowingly – appropriates for immigration enforcement a level of resources that it knows will enable the administration to go after no more than about 4 percent of the entire undocumented population," Legomsky, now a professor at the Washington University School of Law, said Friday by phone.
"I'm really hard-pressed to think of any serious legal objection – statutory or constitutional – that could be made."
Still, the fact that the administration has released no specific plans suggests officials are taking pains to come up with language designed to be teflon-coated against legal challenges.
Legomsky said the legal arguments behind the moves Obama is reportedly weighing are identical to those that governed the crafting of DACA. But because millions more people are expected to benefit – and because everyone is anticipating the changes – officials are being particularly careful this time around.
"It's … an indication that they know that, whether it's legal or not, their critics will accuse them of doing something that was illegal," he said. "They're savvy enough to know that those criticisms will be coming."
Rep. Matt Salmon (R-Ariz.) took those criticisms a step beyond the government spending debate Friday, arguing that, if Obama adopts the changes reported in the press, it would be an impeachable offense.
"Of course it would be,” he told Newsmax TV. "But committing an impeachable offense and getting the two-thirds in the Senate to convict are two different stories.
"We have to play the hand that we are dealt right now.”
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