The Secret Memo That Explains How Obama Can Unilaterally Legalize All Immigrants, But Won't

Reporting on Politics and Policy.
Aug. 15 2013 8:02 PM

The Secret Memo That Explains How Obama Can Unilaterally Legalize All Immigrants, But Won't

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Righter than you might think.

Photo by Win McNamee/Getty Images

It's been a tough August recess for Sen. Marco Rubio, who irritated the Republican Party's restive base by co-sponsoring the Senate's immigration bill. Back home, he has to deal with (so far flimsy) threats of recall and primary challenges. As he works the conservative media circuit, he dodges questions with a theory, Either Congress passes immigration reform, or President Obama does it himself.

I believe that this president will be tempted, if nothing happens in Congress, to issue an executive order as he did for the Dream Act kids a year ago, where he basically legalizes 11 million people by the sign of a pen.

That sounds an awful lot like Rubio softening up skeptical Republicans with something that couldn't happen. But as Mark Krikorian pointed out, a few days before Rubio got on this stick, theoretically Obama could make this happen. This is not some wild Orson Scott Card theory. This was developed, but nixed, in a 2010 DHS memo.

Screen shot 2013-08-15 at 7.48.03 PM

You can read the rest of the memo at the link and learn that the plan had too many cons, such as how "the secretary would face criticism that she is abdicating her charge to enforce the immigration laws." She probably would! More importantly, analysts realized that any executive order to ignore all immigration laws could be negated by Congress.

So, Rubio isn't wrong. He assumes a President Obama who would act unilaterally, before a tough midterm election, to "legalize" immigrants in a way that wouldn't actually allow them to vote, and a way Congress could undo. Still: He might!

David Weigel is a Slate political reporter.