How Obama Plans to Safeguard His Legacy

Can Obama entrench his executive actions before he leaves office?

U.S. President Barack Obama delivers the State of the Union address on January 20, 2015 in the House Chamber of the U.S. Capitol in Washington, DC. Obama was expected to lay out a broad agenda to address income inequality, making it easier for Americans to afford college education, and child care.
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Ronald Brownstein
Jan. 23, 2015, midnight

One in­es­cap­able con­clu­sion from Pres­id­ent Obama’s con­front­a­tion­al State of the Uni­on ad­dress this week is that he ex­pects to reach few le­gis­lat­ive agree­ments with the Re­pub­lic­an Con­gress. There’s prob­ably a bet­ter chance of Re­pub­lic­ans des­ig­nat­ing an “Af­ford­able Care Act Ap­pre­ci­ation Month” than of passing le­gis­la­tion to raise cap­it­al-gains taxes or to provide tu­ition-free com­munity col­lege, as the pres­id­ent pro­posed.

This sug­gests that while Obama is hop­ing to frame a broad­er de­bate with his new pro­pos­als, he an­ti­cip­ates that he will make his greatest “fourth quarter” im­pact through ex­ec­ut­ive ac­tions that by­pass Con­gress. He’s already signaled that in­ten­tion in re­cent months by mov­ing ag­gress­ively to ad­vance reg­u­la­tions aimed at com­bat­ing glob­al cli­mate change; nor­mal­iz­ing re­la­tions with Cuba; and provid­ing leg­al pro­tec­tion to mil­lions of un­doc­u­mented im­mig­rants. This week’s speech in­dic­ated that more uni­lat­er­al ac­tion could be com­ing, in­clud­ing mov­ing to­ward clos­ing the Guantá­namo Bay pris­on.

Obama de­liv­ers the State of the Uni­on ad­dress Tues­day in the House Cham­ber of the Cap­it­ol. (Man­del Ngan-Pool/Getty Im­ages)Giv­en the fierce op­pos­i­tion among con­gres­sion­al Re­pub­lic­ans to all of these ideas, the party’s next pres­id­en­tial nom­in­ee will likely face enorm­ous pres­sure to prom­ise to over­turn them. That, in turn, points to a top re­main­ing pri­or­ity for Obama: en­trench­ing these ini­ti­at­ives to the point where even a Re­pub­lic­an suc­cessor might hes­it­ate to up­root them.

The ad­min­is­tra­tion strategy amounts to a bet that there is safety in num­bers. The best de­fense Obama can provide for his ex­ec­ut­ive ac­tions is to en­large their con­stitu­en­cies be­fore he leaves of­fice. The more Amer­ic­ans who es­tab­lish ties to Cuba through 2016, for in­stance, the more dif­fi­cult it will be for even a Re­pub­lic­an pres­id­ent in 2017 to dis­con­nect the two na­tions. (Al­though Obama’s health care re­form is groun­ded in le­gis­la­tion, not ex­ec­ut­ive ac­tion, the prin­ciple is the same: The more people who are covered through the pro­gram, the tough­er it will be to re­voke that in­sur­ance later.)

Im­mig­ra­tion could be where this dy­nam­ic un­folds most ur­gently. It may be im­possible to win the 2016 GOP pres­id­en­tial nom­in­a­tion without prom­ising to res­cind Obama’s or­der of last Novem­ber, which provided leg­al pro­tec­tion to as many as 5.2 mil­lion un­doc­u­mented im­mig­rants — nearly half of the es­tim­ated U.S. total. The pres­id­ent’s al­lies re­cog­nize that their best chance of pro­tect­ing that or­der once Obama has left of­fice is to pull so many people in­to the pro­gram that it will ap­pear im­prac­tic­al to re­voke their status, even if Re­pub­lic­ans take the White House. As Los Angeles May­or Eric Gar­cetti told me at a Na­tion­al Journ­al for­um this week, “Any steps we can take for­ward [in leg­al­iz­ing un­doc­u­mented im­mig­rants] will show that it gets a little bet­ter, not worse. So [Amer­ic­ans will say], ‘What do we have to fear?’ “

But it won’t be easy to per­suade large num­bers of un­doc­u­mented im­mig­rants, more ac­cus­tomed to lower­ing their pro­file than rais­ing it, to step for­ward to par­ti­cip­ate. Wash­ing­ton isn’t un­der­tak­ing a big out­reach pro­gram: Ad­min­is­tra­tion of­fi­cials say that isn’t ap­pro­pri­ate for an ini­ti­at­ive that amounts to a de­cision not to pro­sec­ute people who are here il­leg­ally but who fit in­to cer­tain pro­tec­ted cat­egor­ies (such as par­ents of U.S.-cit­izen chil­dren). That places a heavy bur­den on non­profit groups and mu­ni­cip­al gov­ern­ments to find the po­ten­tially eli­gible and lead them through the com­plex pro­cess.

Many big cit­ies, such as L.A. (which has by far the na­tion’s largest eli­gible pop­u­la­tion, at about 500,000), will mount ma­jor ef­forts. “If this goes in­to ef­fect, it will be a huge boon for us eco­nom­ic­ally, so­cially, in terms of pub­lic safety,” Gar­cetti in­sists. But “the eli­gible pop­u­la­tion is much more dis­persed now” than it was dur­ing the last mass-leg­al­iz­a­tion pro­gram, un­der Ron­ald Re­agan in the 1980s, says Mi­chael Fix, pres­id­ent of the Mi­gra­tion Policy In­sti­tute. The group has cal­cu­lated that the 20 counties that con­tain the most po­ten­tially eli­gible people ac­count for only about 40 per­cent of the total. That means mil­lions of those who might qual­i­fy for the pro­gram live in places that lack the re­sources L.A. or Chica­go will de­ploy to help res­id­ents ac­cess it. “The chal­lenge comes down to: Do we have the in­fra­struc­ture?” says Mar­i­elena Hin­cap­ié, ex­ec­ut­ive dir­ect­or of the Na­tion­al Im­mig­ra­tion Law Cen­ter.

Adding an­oth­er twist, a con­ser­vat­ive fed­er­al Dis­trict Court judge in Texas may soon is­sue an or­der tem­por­ar­ily block­ing fed­er­al im­ple­ment­a­tion of the pro­gram, in a suit brought against it by 25 Re­pub­lic­an-lean­ing states. Ad­voc­ates re­main cau­tiously con­fid­ent that a 2012 Su­preme Court de­cision un­der­scor­ing fed­er­al au­thor­ity over im­mig­ra­tion policy en­sures that the courts will even­tu­ally al­low Obama to pro­ceed — and Gar­cetti says cit­ies will con­tin­ue their own plan­ning even if Wash­ing­ton is tem­por­ar­ily de­railed. “We’re go­ing to move for­ward,” he tells me. “We can’t af­ford not to.”

But sup­port­ers fear fur­ther delay and leg­al con­fu­sion could de­press en­roll­ment in the pro­gram and leave it more vul­ner­able after Obama’s second term ends. In this in­tric­ate struggle over the pres­id­ent’s leg­acy, that may be ex­actly what his op­pon­ents want.

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