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PolitiFact: Rubio's immigration warning about Obama ignores legal reality

U.S. Sen. Marco Rubio has a dire message for conservatives who oppose immigration reform: Improve the status quo, or President Barack Obama could make the situation much worse.

"I believe that this president will be tempted, if nothing happens in Congress, he will be tempted to issue an executive order like he did for the DREAM Act kids a year ago, where he basically legalizes 11 million people by the sign of a pen," Rubio said in a recent radio interview.

Rubio said such a move could doom GOP priorities for more border security and E-Verify checks in the Senate proposal.

We cannot fact-check the future, but we thought it appropriate to examine whether Rubio's feared scenario is actually possible.

It's easy to interpret Rubio's claim as Obama granting all-out citizenship to millions of undocumented immigrants, but that could not happen.

Obama does not have authority to override laws by executive order because orders "have tended to be quite focused, not open-ended over time," said Kevin Johnson, University of California Davis School of Law dean.

But this is not exactly what Rubio warned against. He's very familiar with this subject, having tried to craft a proposal similar to the DREAM Act, a law that would have provided a route to legal residency to immigrants brought here by their parents.

After DREAM Act legislation stalled, Obama announced a policy in June 2012 called Deferred Action for Childhood Arrivals. It allows undocumented immigrants who came to the country as children to apply for a renewable, temporary status that suspends deportation and allows them to work in the country. So far, at least 430,000 people have received deferred action.

To Rubio, Obama's policy "basically legalized" this group and was improper. He's not alone in that belief. Giving someone a renewable status with work authorization is de facto legalization, said Mark Krikorian, executive director of the Center for Immigration Studies, which supports stricter immigration laws.

Others say deferred action does not amount to legal status because the classification is temporary, putting the recipient in "legal limbo" while allowing him or her to possibly apply for a driver's license and work without fear of immediate deportation, said Shoba Sivaprasad Wadhia, a Pennsylvania State University law professor.

The Department of Homeland Security justified its policy as within the "prosecutorial discretion" of the executive branch.

So could it be extended to all immigrants here illegally? Obama has shot down the idea, stressing the need for a bill.

"I'm not a king," he told Telemundo in January. "You know, my job as the head of the executive branch ultimately is to carry out the law."

It's worth noting his administration has at least weighed the idea. A 2010 memo detailed the risks of a broad legalization program, including blow-back from Congress and the impression of abdicating the "charge to enforce immigration laws."

A Rubio spokesman pointed to a National Journal piece that examined a backup strategy of activists: Persuade Obama "to freeze the current undocumented population in place through an administrative order, give them work permits, and hope for a better deal under the next president, with the hope that he or she is a Democrat."

Some experts say it's a stretch for Obama to pull off offering all undocumented immigrants deferred action.

He would have to provide an extreme reason to order a massive stay of deportations, such as a lack of resources, and it would have to be brief, said Robert Delahunty, a University of St. Thomas law professor who co-wrote an argument against the legality of the 2012 deferred action policy.

Krikorian agreed, calling it "a bridge too far even for the pusillanimous appeasers among Republicans in Congress."

It's more conceivable Obama would chip away at the undocumented immigrant population by building on last year's policy for children who came to the country as minors. Caveats could include cut-off dates and clean criminal histories.

"It would be the mother of all political battles," said Carl Hampe, an immigration lawyer who worked for the Department of Justice under President George H. W. Bush.

Rubio's implied threat contains an element of truth: Obama has broad authority over immigration enforcement, and he could conceivably build on his 2012 deferred action policy to cover more of the illegal immigrant population. But Rubio's warning ignores legal reality. We rate Rubio's claim Mostly False.

Edited for print. Read more rulings at politifact.com/florida.

PolitiFact: Rubio's immigration warning about Obama ignores legal reality 08/23/13 [Last modified: Saturday, August 24, 2013 12:35am]

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