President Barack Obama's sweeping immigration action leaves millions still at risk of deportation, including one group activists had long hoped the president would protect: the parents of the "Dreamers" he granted relief to two years ago.
The White House's lawyers concluded Obama didn't have the authority to do so without Congress, a verdict that's not sitting well with some of his own supporters.
"Today's victory is tremendous, but to be real, it is incomplete. Millions of Dreamers have siblings who have U.S. citizenship or green cards so their parents will qualify for this new program — and hundreds of thousands more Dreamers will now be eligible for protection," United We Dream Managing Director Cristina Jimenez said in a statement Thursday evening. "But too many of our parents, LGBTQ brothers and sisters and friends were left out. United We Dream doesn't agree with that decision and we are determined to fight for their protection. Our community sticks together."
As he headed to Las Vegas Friday along with Democratic lawmakers including Senate Majority Leader Harry Reid of Nevada and Sen. Robert Menendez of New Jersey, he will face an audience that's expected to include some of the parents of DACA recipients who will remain at some risk of deportation. Democrats had been cautioned in advance that Obama's executive action would not apply more broadly to the parents of Dreamers, the group of undocumented people who came to America as children, because the administration's own lawyers didn't believe that move could be stacked on top of the existing deferred action program.
"Here's the problem we have: I would like to see ... all of the families of DREAMers be protected, but because DACA was executive action, it's the understanding, or at least it's an opinion of the White House counsel that you cannot build on an executive action, so they had to be careful in the way that this was written to comply with all the precedents and law on the subject," Durbin told reporters before Obama's speech Thursday.
Durbin said he trusted the judgment of the administration on the legal case. It's a limit that the Justice Department's Office of Legal Counsel outlined in a Nov. 19 memo released publicly Thursday evening.
"Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition ... or enabled their undocumented children to petition for visas on their behalf," the OLC memo said, noting the Department of Homeland Security "remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis."
The memo, which details the administration's case for the legality of the underlying program, was something at least some Republicans on Capitol Hill thought they might never see.
"Of course they should, and they're not going to," Sen. John McCain, R-Ariz., said earlier in the week, when asked if the administration should release legal opinions behind the president's action. "That's one of the most blatant abuses of power that I've seen in recent years."
But in fact the Justice Department ultimately did release the memo, and the White House has been aggressive in highlighting comparisons between what's being rolled out this week and actions by prior Republican administrations. A letter from 10 prominent legal scholars including Eric Posner and Larry Tribe, circulated Thursday evening , to media outlets including CQ Roll Call, also made the case for the legal grounding of the president's move.
"While we differ among ourselves on many issues relating to Presidential power and immigration policy, we are all of the view that these actions are lawful," the letter said.
"Both the setting of removal priorities and the use of deferred action are well-established ways in which the executive has exercised discretion in using its removal authority," the letter said. "These means of exercising discretion in the immigration context have been used many times by the executive branch under Presidents of both parties, and Congress has explicitly and implicitly endorsed their use."
Republican lawmakers, of course, have an entirely different view , but for advocates left unsatisfied, a reading of the legal case seems clear that the next big step must be legislative rather than administrative.
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