As Republicans try to fight back against President Obama's recent executive actions on immigration by arguing they were illegal or unconstitutional, they've found an interesting constitutional authority who supports their case: President Obama, circa 2011.
Obama flip-flopped on his immigration powers
In the early years of the Obama administration, in 2010 and 2011, the president argued repeatedly that he wasn't able to do anything more than he was already doing to protect immigrants from deportation. In 2012, however, he rolled out the Deferred Action for Childhood Arrivals program, which allowed over a million unauthorized immigrants to apply for temporary deportation protection (and is the program that Obama's new executive actions are build on). That's exactly the kind of broad relief that immigrant activists had been calling for in 2011, and that Obama had said he wasn't able to do.
After introducing DACA, the administration said once more that it couldn't do anything more to protect immigrants — but flip-flopped again in 2014, when the administration announced a broad review of deportation policy to see how it could be made more humane.
Now, after announcing his latest executive actions, President Obama maintains that he never contradicted himself. Check out the 1:15 mark of this interview with ABC's George Stephanopoulos:
If this sounds like a lame defense, it's because it is. Obama has said, on multiple occasions, that he couldn't "wave a magic wand" to protect immigrants from deportation. As the New York Times has pointed out, the suggestions Obama was rejecting around 2011 were exactly the proposals he's adopting now. Speaker John Boehner's office has compiled a fact sheet of various times President Obama said that, when it comes to immigration, he was unable to do the thing that he just did in November. And during a House Judiciary Committee hearing, chairman Bob Goodlatte played a video that compiled several of those quotes into a clip reel.
They're not just using old statements, either. Republicans are also pointing to a speech President Obama gave in Nevada, the day after announcing his executive actions, in which he refers to those actions as "chang(ing) the law."
That doesn't mean he was right the first time
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. He was using "I can't, legally, do anything" as cover, because he didn't think that executive action to protect unauthorized immigrants would be a good idea. He wanted to try Plan A — passing a law — instead. When that failed in 2013, he changed his mind, and decided that executive action was the best option available.
It would be nice if the White House acknowledged this, and admitted the flip-flop, rather than trying to pretend the president's been consistent. But their spin doesn't affect the underlying question of legality.
As for the Nevada speech comments, you can see that as a sinister revelation of the his true feelings, or you can see it as a slip of the tongue: like the time he said "I want to see us export more jobs." (Press secretary Josh Earnest said the president was speaking "colloquially," which doesn't make any sense — and sounds like an attempt to avoid saying the president slipped up.) Even if Obama does actually think that his administration changed immigration law, the legal memos from the administration establish that he'd be wrong.
The GOP successfully caught Obama on the flip-flop — but he flip-flopped from being wrong to being right. And if they're going to make the case that the president can't dictate what the law is, they're going to have a hard time using the president as their authority on the subject.