By Jerry Markon | The Washington Post
Former homeland security secretary Janet Napolitano is supporting executive action by President Obama to change immigration policy if Congress fails to pass a broad overhaul, citing what she calls her successful 2012 push to delay deportations of many younger immigrants.
"If Congress refuses to act and perform its duties, then I think it's appropriate for the executive to step in and use his authorities based on law .?.?. to take action in the immigration arena,'' Napolitano, a lawyer and former U.S. attorney in Arizona, said in an exclusive interview with The Washington Post.
Napolitano spoke ahead of a speech she is scheduled to give Monday in Georgia in which she will publicly detail for the first time the sometimes heated internal administration debate over the 2012 Deferred Action for Childhood Arrivals (DACA) program. Begun by Obama over fierce objections from some conservatives, it has deferred the deportations of more than 580,000 young immigrants brought to the United States illegally as children.
In the speech, Napolitano describes a complicated and fraught 2012 debate inside the administration in which White House lawyers peppered her with tough questions and some Department of Homeland Security officials questioned whether the program would overwhelm the government's ability to implement it.
"There were serious logistical concerns," Napolitano says in her prepared remarks, a copy of which was obtained by The Post. "It would run the risk of appearing to make law and usurping Congress. .?.?. Who knew how it all would turn out?"
Napolitano's perspective is especially relevant as the administration debates whether to take further executive action on immigration, including a possible major expansion of the 2012 relief program. With a comprehensive immigration-law overhaul dead for now on Capitol Hill, Obama had promised to act on his own by summer's end, and the administration had been preparing new measures that would potentially allow millions of illegal immigrants to remain in the United States without fear of deportation.
But last month, the administration bowed to political concerns and informed lawmakers and advocacy groups that Obama had delayed any action until after November's midterm elections.
Napolitano, who left the DHS last year and is president of the University of California system, declined to say in the interview what she thought of the president's decision or to detail what executive decisions she thinks he should make without Congress. But should he choose to act, she said, the DACA program provides "a good petri dish on how you set it up, the budget stuff, all of those nuts and bolts.''
The 2012 decision was galvanized by Congress's failure two years earlier to pass the Dream Act, which would have given legal status and a path to citizenship to "dreamers" — young immigrants brought to the country as children.
Initially, Napolitano says in her speech, to be delivered at the University of Georgia law school, she was unsure whether DHS — a relatively new agency created after the attacks of Sept. 11, 2001 — could handle the mechanics of an executive response by the administration. Meanwhile, she said, "dreamers remained in limbo, ensnared within the sputtering debate over immigration reform."
By the spring of 2012, Napolitano was ready. She assembled a small team of advisers and lawyers. "I asked them this: ‘What can we do about the dreamers? What can we do short of a blanket amnesty? What can we do within the parameters of the law?'?"
Her team recommended only a limited course of action: delaying deportations for dreamers who were already in the process of being removed from the country.
"I said that this was neither big enough nor bold enough,'' Napolitano recalls in the speech.
A group of agents at Immigration and Customs Enforcement objected, and Napolitano also ran into "serious logistical concerns" at U.S. Citizenship and Immigration Services, the DHS agency that would primarily enforce the program. Officials there worried "that we could not implement this decision, given the size of the population we expected to seek relief," Napolitano says.
Not to mention, she adds, that "some members of Congress would howl."
She pushed ahead anyway and took the proposal to the White House. Though she never met with Obama about it, Napolitano recalled in the interview how other top officials — especially then-White House counsel Kathryn Ruemmler — grilled her about the challenges of implementation and the legal issues of acting without Congress.
Eventually, the White House was satisfied, and Obama announced the program in June 2012.
Looking back, Napolitano said in the interview that the experience "was an illustration of how an agency and the White House worked together on pushing forward a legal and policy matter that hadn't been done before that could affect thousands of people.''
"It just seemed to me that we needed to do something for this group of young people," she added. "They were brought here as kids, not of their own volition. They really are kind of the worst victims of the lack of immigration reform."