Obama Could Declare An Immigration Amnesty, But ...

By Frank James

Published July 17, 2013 at 5:23 PM EDT

President Obama has enough problems with Congress without waving the red cape of a presidential amnesty to immigrants in the U.S. illegally.

In an interview this week, Univision's Adriana Vargas asked President Obama if, in the event Congress failed to pass immigration legislation, he could simply use his presidential power to give amnesty to the estimated 11 million people currently in the U.S. illegally.

The president didn't exactly shut the door on that possibility, though he did strongly suggest it was a portal he'd rather not go through.

OBAMA: "Probably not. I think that it is very important for us to recognize that the way to solve this problem has to be legislative. I can do some things and have done some things that make a difference in the lives of people by determining how our enforcement should focus. Right now we're focused much more on criminals. We're focused much more on those who have endangered people or communities. And we've been able to provide help through deferred action for young people and students — the DREAMers who I've had a chance to meet with. And they're just incredible young people and great assets to the United States. But this is a problem that needs to be fixed legislatively. So I'm not going to speculate on the House bill failing. I'm going to make sure that I do everything I can to help it succeed."

"Probably not" is obviously not the same as "no" or "never." So Obama seems to be keeping the option available to himself even as he puts the onus on Congress to achieve an immigration overhaul that includes a path to citizenship, known to its detractors as "amnesty."

And it is a very real, if highly unlikely, option for the president. Article 2, Section 2 of the U.S. Constitution gives the president broad pardon powers, even to the extent of granting amnesties to those who've violated federal law.

Amnesty dates to the earliest days of the republic. Like many presidential traditions, it began with President George Washington, who offered an amnesty to participants in 1794's Whiskey Rebellion, a violent tax revolt in Western Pennsylvania. More recently, Presidents Gerald Ford and Jimmy Carter gave amnesties to Vietnam War-era draft evaders.

"The constitutional backdrop is [that there is] absolutely no doubt the president could [declare an amnesty for those in the country illegally]," P.S. Ruckman Jr., a professor of Rock Valley College in Illinois, told me in an interview.

Ruckman, an expert on presidential pardons who runs the , said: "I don't think there's anyone who would argue the president doesn't have that power. I can't imagine who that would be or what their argument would be ..."

But just because the president has the constitutional power to do something doesn't mean it would be a politically wise move.

"Sure, if you're the president, you would probably prefer that the legislative branch solve this," Ruckman said. "Legislation can be a little more detailed. It can be, at least potentially, the work of compromise and potentially bipartisan.

"So if you're the president, sure, that's the ideal way to do it," Ruckman said. "Also, if you're the president you don't want to send signals that you're kind of trigger happy. 'Well, hey if Congress doesn't do it, then I'll grant the amnesty.' You can't do that. So [what Obama said to Univision was] exactly what the president should say. But it doesn't alleviate the fact that he does have the power, ultimately."

Unilaterally granting a presidential amnesty to people in the country illegally would not only be received as a declaration of war by many of his Republican opponents; it most likely wouldn't go down well even with some Democratic allies.

"This is one of the great lessons of Woodrow Wilson's presidency," Ruckman said. "There's party politics and ideological politics, which we're all aware of. But there's also institutional politics. And Wilson just had a way of annoying people in his own party in the Senate. He made them feel like they weren't significant.

"And the next thing you know, he lost them as allies. I think if you're in the House and the Senate, you don't want the president, even if you're in his party, out there flexing amnesty muscle. Now the time may come when he will do it. It's certainly constitutional. But there's no reason to preview it at all now. None."