It doesn’t matter that Obama flip-flopped on legality of executive action on immigration
Republicans who think President Obama’s executive action on immigration is illegal or unconstitutional delight in noting that the president said so himself just a few years ago.
Yes, he did. But he was wrong.
Dara Lind EXPLAINS:
Where the GOP runs into trouble is that they’re not just using Obama’s past statements to show that the president flip-flopped. They’re trying to use them as proof that the new executive actions are officially unconstitutional, or at least illegal.
This is a weirdly circular argument. The GOP is saying that the president isn’t the authority on whether an action is legal, that 2014-edition Obama can’t make his executive actions legal just by saying they are. But they’re trying to prove that by using the president’s words in his November Nevada speech as the authority on whether what he did was a change to the law, and his words in 2011 as the authority on whether it was legal to do that.
But what he was saying in 2011 was wrong.
Under the Immigration and Nationality Act, president has a lot of authority to decide who to deport and who not to deport — and what to do with the latter. That doesn’t require a change to the law — no matter what Obama said in Nevada.
And despite Obama’s earlier protestations, his administration never actually built a legal case in 2011 to say that it didn’t have the authority to protect people from deportation. The first time the Obama administration issued a legal memo defending its immigration policy was last month, and it was to show why the new executive actions were legal. That memo made it pretty clear that the Obama administration doesn’t think it was really changing the law when it took these actions.
In retrospect, it seems pretty clear that what Obama was saying in 2011 was about politics, not law.