To hear Republicans tell it, the outrage about President Obama’s likely executive actions on immigration is less about the policy and more about the legal principles. Presidents, the argument goes, simply aren’t supposed to shape immigration policy unilaterally – such actions are unprecedented, unconstitutional, and at odds with the American tradition.
The trouble, of course, is that if Obama does take policy steps on his own, he won’t be blazing a new trail; he’ll be following a trail that already exists. Mark Noferi had an interesting piece last week on some of this president’s recent predecessors.
The story begins on November 6, 1986, when Reagan signed the last comprehensive legalization bill to pass Congress. The Immigration Reform and Control Act (IRCA) gave up to 3 million unauthorized immigrants a path to legalization if they had been “continuously” present in the U.S. since January 1, 1982. But the new law excluded their spouses and children who didn’t qualify. As the Senate Judiciary Committee stated at the time, “the families of legalized aliens … will be required to ‘wait in line’.”Immediately, these split-eligibility families became the most polarizing national immigration issue. U.S. Catholic bishops criticized the government’s “separation of families,” especially given Reagan’s other pro-family stances. In early 1987, members of Congress introduced legislation to legalize family members, but without success.
When Congress failed to act, the Reagan administration decided to change the policy on its own, announcing that federal law enforcement would use its “discretion” and extend protections against deportations. And at that point, congressional Republicans condemned Reagan’s outrageous and dangerous abuses, calling for his immediate impeachment.
Wait, actually that never happened. My mistake.
A few years later, the Bush/Quayle administration pursued its own executive actions on immigration – again, without Congress – concluding that the law should be enforced “humanely” and without splitting up families.
George H.W. Bush wasn’t impeached, either.
Given the far-right apoplexy about Obama’s “unprecedented” actions, the public might be surprised to learn just how much precedent there is.
The memo from American Bridge looks back at immigration policy from the days of President Ronald Reagan through those of President George W. Bush. The instances of selective enforcement highlighted include:* The Reagan administration easing immigration standards for 200,000 Nicaraguan exiles fleeing communism in 1987. That year, Attorney General Edwin Meese instructed the U.S. Immigration and Naturalization Service to ”encourage and expedite Nicaraguan applications for work authorizations” and ordered the service to ”encourage Nicaraguans whose claims for asylum or withholding of deportation have been denied to reapply for reopening or rehearing.”* A 1990 executive order from President George H. W. Bush making it easier for Chinese students to stay in the country should they fear persecution upon being sent back to China. The action effectively stopped deportation proceedings against these students for nearly four years.* A 1991 executive order, again from Bush, that delayed deportation of Kuwaiti residents for four years, which came following Iraq’s invasion of that country.* The Clinton administration’s decision in 1993 to grant an 18-month extension of a deferred action departure program affecting U.S.-based Salvadoran immigrants. The program had been launched to help those fleeing a civil war in that country.* A 2001 George W. Bush executive order that gave 150,000 Salvadorans the right to remain in the country 18 more months after their country was hit by an earthquake.* And a 2002 Bush executive order that expedited naturalization proceedings for those green card holders who had enlisted in the United States military. The order eliminated the three-year waiting period that had existed up to that point.
Now I’ve seen some persuasive arguments that Obama’s apparent plan is qualitatively different from these more limited measures. It’s a fair and accurate point – what this president reportedly has in mind goes further and affects more people. It’s not at all unreasonable to recognize a difference between modest actions and sweeping actions.
But if this political fight ultimately comes down to principle, it’s an argument Republicans will lose. The right’s case is simple: changes to immigration policy must come from congressionally approved legislation, not executive actions. Recent history clearly paints a very different picture.
If Republicans had gone hair-on-fire berserk about any of these other modern presidents using their powers in nearly identical ways, they might appear less craven now. But at this point, the GOP’s argument appears to boil down to, “Other presidents can change immigration policy through executive actions, but this one can’t.”
And that’s not a sustainable posture.