The Huffington Post is running a story today claiming that Mitt Romney has abruptly shifted his stance on immigration and has now embraced President Obama’s executive order halting deportations and granting work permits to so-called “DREAMers.” Huffo claims:
“The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I’m not going to take something that they’ve purchased,” Romney said. “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.”
The announcement from Romney is a move toward a less rigid stance on immigration that the candidate has also taken in the past. It also risks offending some of the more ardent anti-immigration voices within his party, some of whom have called the Obama deferred action policy race-baiting. Some members of the party have urged Romney to reverse the policy as president.
It’s a good narrative, but like so much of what the media has been saying about Romney over the past week, it simply doesn’t hold up to scrutiny. The origin point of the article – the Denver Post – explains Romney’s position this way:
Young illegal immigrants who receive temporary work permits to stay in the United States under an executive order issued by President Barack Obama would not be deported under a Mitt Romney administration, the GOP presidential hopeful told The Denver Post Monday.
Now, note Romney’s wording above. He does not say he will keep the policy on the books. He does not say he will issue more work permits, or continue halting deportations of new DREAMers. What he says is that he won’t deport people who have already been declared safe, or been given work permits. In other words, he won’t retroactively criminalize people who have been released from criminal liability by this administration.
This position is simply a vindication of a larger legal principle that is actively enshrined in the United States constitution – namely, the ban on ex post facto (or “after the fact”) laws enshrined in Article I, Section 9. While this ban is questionably relevant to executive orders as opposed to actual legislation, Romney’s position indicates that he wants to adhere to the spirit of this constitutional requirement, even if he’s not legally required to.
This is scarcely an endorsement of the original policy. Even California’s Proposition 8 – the infamous anti-gay marriage constitutional amendment – did not nullify marriage licenses issued before it was passed, nor would it arguably have been able to. Romney could easily maintain this position while reversing Obama’s policy for all future cases, in effect limiting its scope solely to people given permits under this administration, much the same way criminals pardoned under Obama would still have clemency if Romney were elected.
In other words, if this position is the closest Romney gets to contradicting immigration hard liners, he’s probably going to handle those issues the way said hard liners would want.