Updated 6:52 p.m. | President Barack Obama would veto any legislation hatched by Republicans to undo his immigration executive action granting relief to millions, according to a senior administration official.
The official left no doubt that the White House is prepared for a shutdown standoff if Republicans attach a rider to the upcoming spending bill needed to keep the government open past Dec. 11.
In a background briefing ahead of the president’s primetime speech Thursday, four senior administration officials detailed the president’s sweeping new executive actions — the winners and the losers — and the legal basis for them.
Ultimately, the president decided to act this week after consulting with Democratic leaders, concluding that Republicans would react the same way whether he acted now or later, so “Why wait,” said one official.
The president wasn’t willing to wait to give the newly elected Republican Congress a chance to act with no commitment or expectation that they would.
“This is a very real thing that is going to affect people’s lives … Deferring that even longer so that we have a better talking point … didn’t make a lot of sense to us,” the official said.
While the president takes Sen. Mitch McConnell’s word that there will be “no shutdowns,” if Republicans pass any bill that would undo his action, “the president would veto” it, the official said.
In the case of a shutdown, the president’s new program would go ahead anyway, because it is funded by fees and not by appropriations, “much like the irony of the Obamacare shutdown,” the official said.
The executive actions themselves are numerous and sweeping, and in many ways go far beyond the more than 4 million people who officially will be eligible for work permits and protected from deportation.
Obama’s administration will order immigration agents to prioritize deportations of criminals and recent arrivals — and let people who are not on that priority list go free.
Illegal immigrants without records will be much less likely to be encountered by immigration enforcement, officials acknowledged.
The White House intends to spin the Obama plan as providing “accountability” as opposed to “amnesty,” with officials already noting that people who sign up for relief would have to go through background checks and pay taxes.
In reality it will create two classes of enforcement — beefed up border security and actions against recent arrivals — and little-to-no enforcement of the law against long-term undocumented immigrants provided they aren’t committing serious crimes.
Some 4 million people here illegally who have U.S. citizen children or legal permanent resident children will be eligible for official deportation relief and work permits, the White House estimates.
Another 270,000 people will be eligible under a separate expansion of Deferred Action for Childhood Arrivals (DACA). There are no longer age limits under the expanded program, meaning people like Jose Antonio Vargas, a journalist-turned-immigration activist who is too old to apply under the original DACA program, would now have an avenue to get deportation relief and a work permit.
Hundreds of thousands more people are expected to be able to take advantage of the Obama changes under streamlined and expanded legal immigration options, according to the White House, including provisional work permits for some people waiting in line for visas.
As for the legal basis for the decision, senior administration officials pointed to presidents as far back as Eisenhower granting immigration relief or amnesty of one form or another. President Ronald Reagan ordered amnesty to people excluded from an amnesty law passed by Congress; President George H.W. Bush did the same.
In Bush’s case, 1.5 million out of 3.5 million illegal immigrants in the country at the time were granted relief, officials said — a similar percentage as would be affected by Obama’s action, they noted.
One official went so far as to call Obama’s program “a routine application of enforcement priorities.”
The administration also emphasized the temporary nature of the relief.
Work permits and deportation relief would last for three years, and are revokable at any time by the secretary of Homeland Security.
There’s nothing stopping the next president from reversing all of these new policies and resuming deportations.
The expanded DACA program will get up and running quickly, but the larger program for parents of legal residents likely won’t be up and running until the spring, one official said.
There’s one big loser under the plan — the parents of DACA children, otherwise known as “Dreamers” — a group that has routinely heckled the president and members of Congress demanding relief.
The White House said Congress has given legal children the ability to apply for visas for their parents.
“Congress has actually recognized that this is a relationship … deserving of protection,” which gives the White House confidence the deferred action would pass legal muster, said one official.
But Congress has done nothing of the kind for parents of Dreamers.
“We made a determination that the law did not support that,” the official said.
The White House likewise made a determination that farm workers could not get DACA-like treatment, and decided against the recapture of expired, unused visas — something sought by the business community.
“The time period for issuing them has passed,” the official said.
The White House is also planning to emphasize that only people who have been in the country for at least five years will be eligible for the new executive relief, and will be making calls to leaders in Mexico and Latin America to make sure that message is loud and clear.
Republicans have charged a large executive amnesty will act as a magnet for millions of additional illegal immigrants.
As for Obama’s many statements that he did not have the authority to significantly expand DACA, the answer from the White House was muddled.
At the time, “we were pushing for legislation” and after “many years and many promises from the speaker he would bring up a bill he did not do so,” one official said. So Obama asked for a legal analysis of his authority.
Another official pointed to recent Supreme Court precedents to suggest a lawsuit would fail, provided someone could get standing to sue.
The high court has granted the government “nearly absolute prosecutorial discretion” in other cases, the official said. Prosecutorial discretion undergirds the decision not to deport people but not the work permits.
The work permits, the official acknowledged, “isn’t quite prosecutorial discretion” but it is “still discretion within DHS.” Another official said it is logical to give work permits to people who are going to be here anyway via deportation relief, and that’s the same mechanism used under DACA.
Boehner, for his part, is accusing Obama of acting like a king. Related: Obama Speech Excerpts — Says 'Real Amnesty' is Doing Nothing Obama’s Own Words on Immigration Are Republicans’ Best Ammo Immigration Threatens Loretta Lynch’s Confirmation Roll Call Results Map: Results and District Profiles for Every Seat Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.