Right-wing media outlets are trying to draw a distinction between Republican administrations' executive actions on immigration and President Obama's proposed order, claiming that the current president's authority for deferring deportation -- unlike that of his predecessors -- is illegitimate.
On November 20, Obama will reportedly issue an executive order that would suspend deportations for certain classes of undocumented immigrants currently living in the United States. Although the full details of the order aren't yet known, it is expected to focus in part on keeping families together and to provide temporary administrative relief to immigrants who are undocumented but whose children are U.S. citizens or otherwise legally present. There is plenty of legal precedent to support Obama's exercise of prosecutorial discretion to halt some deportation proceedings, and experts from across the political spectrum have pointed out that this sort of executive action has taken place in the past, notably once when Congress failed to pass immigration reform.
Yet right-wing media have nevertheless fearmongered about the legality of Obama's proposed executive action, even though the Associated Press reported that both Ronald Reagan and George H.W. Bush “acted unilaterally on immigration,” as have numerous presidents before and since. Despite this Republican precedent, which the American Immigration Council has called a "striking historical parallel," conservative media figures have sought to deny the similarity. Radio host Mark Levin slammed the Associated Press report, saying, “No, Ronald Reagan, no, George H.W. Bush did not do what Obama is about to do,” because Reagan was acting in response to the Immigration Reform and Control Act (IRCA), which “Congress passed” and “sent to the president.”
National Review Online contributor Mark Krikorian also tried to distinguish Obama's “threatened move” from Reagan and Bush's executive actions, calling the comparison a “nice try.” Krikorian went on to argue that Reagan's action “is simply irrelevant to the current case” because it “was a legitimate exercise of prosecutorial discretion shortly after passage of” IRCA. Krikorian also rejected the similarities to George H.W. Bush's immigration order, arguing that it “cannot meaningfully be described as precedent for Obama's scheme” because, among other reasons, Bush's move was a “cleanup measure for the implementation of the once-in-history amnesty that was passed by Congress.”
Rush Limbaugh repeated this attack on the November 18 edition of his show, saying that “it's uncanny to me how often the Democrat Party, when they get in a jam and when they know they're doing something that is untoward, when they know they're doing something that's not above board -- like this clearly is not above board -- they go back and they cite Reagan.” Later, Limbaugh claimed that “Reagan never took executive action. This is a bold-faced, flat-out lie.”
But as the AP report pointed out, in 1986 Reagan issued an executive order that provided relief for the undocumented children of immigrants who had been granted amnesty under IRCA. In 1990, Bush established a “family fairness” program that deferred deportations for some “family members living with a legalizing immigrant” who were in the country before IRCA was passed. According to the AP, up to 1.5 million people were affected by Bush's executive action, approximately the same percentage of the undocumented immigrant population expected to be affected by Obama's forthcoming order.
Moreover, Mark Noferi of the American Immigration Council pointed out the inaccuracy of the right-wing media's claim that Obama's executive order is different because Bush was engaged in a "clean-up measure" after IRCA was signed into law.
Writing for The Hill, Noferi explained that it was the House of Representatives' failure to take up a subsequent Senate immigration bill -- not the 1986 law -- that led to Bush's deferred action for 40 percent of the undocumented immigrant population in 1990. After the House's failure to act, Bush “administratively implent[ed] the Senate bill's provisions himself” in order to keep immigrant families together. This is not unlike the current immigration landscape, where comprehensive immigration reform passed the Senate, only to be refused a vote by the House. From The Hill:
In July 1989, the Senate moved to protect a bigger group -- all spouses and children of those who legalized under IRCA. The Senate passed legislation 81-17 that prohibited the administration from deporting family members of immigrants in the process of legalizing and directed officials to grant them work authorization. The House failed to act on the Senate's bill.
George Bush Sr. then responded in February 1990 by administratively implementing the Senate bill's provisions himself. As Bush's INS Commissioner, Gene McNary, stated: “It is vital that we enforce the law against illegal entry. However, we can enforce the law humanely. To split families encourages further violations of the law as they reunite.” Under Bush's “family fairness” policy, applicants had to meet certain criteria, and reapply to the INS every year for extensions.
The Bush administration anticipated its family fairness program could help enormous numbers of immigrants -- up to 1.5 million family members, which amounted to over 40 percent of the 3.5 million unauthorized immigrants in the U.S. at the time.
After the Bush administration moved, the House followed.
Even conservative attorneys agree that Obama has the legal authority to take action on immigration through an executive order and that he is acting pursuant to the statutory discretion Congress provided. Shikha Dalmia, a senior policy analyst for the libertarian Reason Foundation, explained that even though “conservatives are outraged” over the executive action, “existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.” Further, as Greg Sargent of The Washington Post's Plum Line blog emphasized, the reality is that “immigration statute -- i.e., Congress -- allows this discretion.” Sargent explained (emphasis in original):
The “prosecutorial discretion” argument holds that immigration law confers upon the president wide discretion to set down enforcement priorities -- by category -- in determining how to deploy limited enforcement resources. The key is that the law also gives the executive discretion to temporarily and formally shield people from removal. As right-leaning legal observers such as Jonathan Adler and Margaret Stock have noted, immigration statute -- i.e., Congress -- allows this discretion, and previous presidents have employed this discretion to shield whole categories of people from deportation.
Some say that if Obama expands his reliance on this authority, it will set a precedent for future presidents to do the same in other areas. But this elides the fact that in this particular area, the law actually does give the president this authority.