Obama's authority on immigration... or lack of it

For months, President Obama has been promising to act on immigration where Congress failed, after it became clear that the House would not take up the bill the Senate passed a year and a half ago. In the days leading up to the president's immigration announcement Thursday evening, Republicans became increasingly irate, accusing him of seizing the powers of a king or an emperor.

Yet before Thursday evening, a little over a year ago in 2013, Mr. Obama was talking about his lack of authority, his inability to expand relief for undocumented immigrants, and even ruled out unilateral action, saying "that's not an option."

He told Telemundo, "Young people who basically have grown up here are Americans that we should welcome. We're not going to have them operate under a cloud, under a shadow. But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be difficult to defend legally. So that's not an option and I do get a little worried that advocates of immigration reform start losing heart and immediately think, 'Well, somehow there is an out here. If Congress doesn't act, we'll just have the president sign something and that will take care of it. We won't have to worry about it.'"

And yet on Thursday evening, it was that very action of "broadening" relief that he announced, extending an offer of delayed deportation and work permits. He said, "[W]e're going to offer the following deal: If you've been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you're willing to pay your fair share of taxes, you'll be able to apply to stay in this country temporarily, without fear of deportation."

And Mr. Obama couched that deal in the power of the office: "There are actions I have the legal authority to take as president -- the same kinds of actions taken by Democratic and Republican presidents before me -- that will help make our immigration system more fair and more just."

And just five minutes later, he said, "The actions I'm taking are not only lawful, they're the kinds of actions taken by every single Republican president and every single Democratic president for the past half century. And to those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary."

Is this the contradiction it appears to be? Sort of.

That year and two months between then and now makes a difference. In September 2013, Mr. Obama could still hope that the House would act on immigration. The Senate had just passed its bill in June. Tipping his hand at that point toward what he could and couldn't do without Congress wouldn't have been all that useful to the argument he was making at that moment in time.

Now, the 113th Congress is limping into its last couple of lame-duck weeks, and if there is one thing that everyone knows, it's that the House is not passing that Senate bill this year. In that intervening year and two months, the President has consulted with Homeland Security Secretary Jeh Johnson and Attorney General Eric Holder on what kinds of actions he could take to defer the deportation of the five million undocumented immigrants he hopes to help.

Mr. Obama does by this time know what his authority allows and doesn't allow. It allows him to defer deportation. It does not allow him to halt deportation. It allows him to confer temporary work permits. It does not allow him to give those five million immigrants permanent relief--U.S. citizenship or even permanent residence. The president only has the authority to give them a temporary haven. And that can be overturned the day he walks out of the White House. Green cards and citizenship--the ability to live in this country permanently--can only be conferred by legislative authority that belongs to Congress.