Indeed, prior to announcing DAPA in November 2014, Obama had said not once, not twice, but 22 times that he did not have the legal authority to offer mass deportation relief without Congressional authorization. “I am president. I am not king,” he pleaded. And yet he did a 180-degree flip.
He may be right this time, but it is understandable that people are having trouble buying it. Why did he get things so wrong originally? Verrilli told the skeptical conservative justices that the president was speaking then without obtaining formal guidance from the Office of Legal Counsel. In other words, he didn’t know what he was talking about.
But that’s the charitable take. The truth is the president was playing politics. He didn’t want to do anything before the 2014 midterm elections to avoid mobilizing Republicans against congressional Democrats. Pleading lack of authority was the best way to fend off Latino activists demanding action.
But, then, when he did issue the order, he didn’t do so humbly with even a stab at an explanation as to why he pulled such an astonishing switcheroo. He pretended that he hadn’t really maintained otherwise, drowning out the protests of critics with a loud drum roll to court Hispanics. Indeed, because he was more interested in taking credit rather than giving relief, he didn’t just quietly issue guidance to field administrators (which is what Verrilli insisted to the justices that DAPA effectively was), he announced a grand new policy and gave it a name, even boasting that he’d “changed the law,” virtually daring his Republican critics to sue him like a bullfighter waving a red flag before a bull. It is almost as if he wanted to keep the issue politically alive rather than settle it.