Critics Say Executive Action on Immigration Would Be Unprecedented. They Forget Their History.

Presidents have almost always acted first to permit immigration or prevent deportation—with Congress ratifying those actions later on.

US President Barack Obama speaks about immigration reform in the East Room of the White House in Washington, DC, October 24, 2013. The President renewed his call for Congress to pass sweeping immigration reform.
National Journal
Charles Kamasak
Oct. 1, 2014, 6:43 a.m.

The pres­id­ent’s an­nounce­ment that he would soon take ex­ec­ut­ive ac­tion to “to do what he could” to fix a broken im­mig­ra­tion sys­tem in the ab­sence of le­gis­la­tion has promp­ted crit­ics to as­sert that this would be un­pre­ced­en­ted un­less first au­thor­ized by Con­gress. In fact, the re­cord demon­strates the op­pos­ite. For at least the last 70 years, pres­id­ents have routinely ac­ted first to per­mit the entry of people out­side nor­mal chan­nels or to pro­tect large num­bers of people from de­port­a­tion, with le­gis­la­tion rat­i­fy­ing the ex­ec­ut­ive ac­tion com­ing later.

Dur­ing World War II, the Roosevelt ad­min­is­tra­tion ne­go­ti­ated a tem­por­ary work­er ar­range­ment with the Mex­ic­an gov­ern­ment, later known as the Bracero pro­gram, an ac­tion Con­gress rat­i­fied a year later. When the au­thor­iz­a­tion ex­pired in 1947, the Tru­man ad­min­is­tra­tion con­tin­ued the pro­gram un­til it was reau­thor­ized in 1951. Be­fore it ended in 1964, mil­lions of work­ers entered the United States un­der the aus­pices of the Bracero pro­gram, hun­dreds of thou­sands un­der ex­ec­ut­ive—not le­gis­lat­ive—au­thor­ity. The pro­gram was rightly cri­ti­cized for nu­mer­ous labor and hu­man-rights vi­ol­a­tions, but few ques­tioned the ex­ec­ut­ive au­thor­ity it op­er­ated un­der.

After the war ended, Pres­id­ent Tru­man used his ex­ec­ut­ive au­thor­ity to per­mit 250,000 people from Europe to enter or stay in the U.S. out­side nor­mal im­mig­ra­tion chan­nels. It was only three years after this ex­er­cise of dis­cre­tion that Con­gress passed the Dis­placed Per­sons Act, per­mit­ting some 400,000 ad­di­tion­al entries.

In April 1975, at the end of the Vi­et­nam War, Pres­id­ent Ford used pa­role au­thor­ity to au­thor­ize the evac­u­ation of 200,000 South Vi­et­namese to this coun­try; it was not un­til a month later that the In­doch­ina Mi­gra­tion and Refugee Act of 1975 was en­acted, provid­ing re­set­tle­ment fund­ing for 130,000 of those pa­rolees. Full le­gis­lat­ive au­thor­iz­a­tion to re­settle those flee­ing In­doch­ina did not come un­til 1980, when Con­gress passed the Refugee Act, res­ult­ing in per­man­ent re­set­tle­ment of 1.4 mil­lion In­doch­inese in the U.S.. Al­though most entered as bona fide refugees, hun­dreds of thou­sands were pa­roled in­to the coun­try when stat­utor­ily au­thor­ized num­bers proved in­ad­equate.

But these broad ex­er­cises of dis­cre­tion were lim­ited to refugees flee­ing wars a long time ago, right? Wrong. Pres­id­ents have ex­er­cised their dis­cre­tion more than 20 times since the mid-1970s to per­mit people already in the U.S. from be­ing de­por­ted. Some sought to avoid re­turn to a So­viet bloc coun­try. Ir­a­ni­ans in the 1980s sought pro­tec­tion from the re­gime that over­threw the shah and oc­cu­pied the Amer­ic­an Em­bassy there. Afghans in the U.S. in the 1980s and 1990s were pro­tec­ted first from the So­viet pup­pet state and later from the Taliban. Oth­ers would have been re­turned to face civil war or nat­ur­al dis­asters abroad. Not un­til 2003, sev­er­al dec­ades after the prac­tice of coun­try-spe­cif­ic re­lief from de­port­a­tion was first de­ployed, did Con­gress co­di­fy the prac­tice known as “tem­por­ary pro­tec­ted status.”

The re­cord also shows that Con­gress made many ex­ec­ut­ive or­ders of tem­por­ary re­lief per­man­ent, of­ten years after the fact. As Fi­del Castro took power in Cuba in 1959, more than 900,000 Cubans fled to the United States, the vast ma­jor­ity pa­roled in­to the coun­try by Pres­id­ents Eis­en­hower, Kennedy, and John­son. Not un­til 1966, some sev­en years after the in­flux began, was the Cuban Ad­just­ment Act passed.

In 1980, 130,000 Mar­i­el Cubans and nearly 40,000 Haitians ar­rived in South Flor­ida. Most, but not all, of the Cubans were pa­roled in­to the U.S. by Pres­id­ent Carter. Haitians ini­tially were pro­tec­ted from de­port­a­tion by lit­ig­a­tion chal­len­ging the deni­als of their asylum claims; most of these Haitians, and some Cubans whose entry had been chal­lenged, even­tu­ally re­ceived dis­cre­tion­ary “Cuban-Haitian entrant status” in the Re­agan ad­min­is­tra­tion. Six years later, the Im­mig­ra­tion Re­form and Con­trol Act of 1986 provided law­ful per­man­ent res­id­ent status for Cuban-Haitian entrants.

In 1987, Re­agan ad­min­is­tra­tion At­tor­ney Gen­er­al Ed­win Meese dir­ec­ted the Im­mig­ra­tion and Nat­ur­al­iz­a­tion Ser­vice not to de­port an es­tim­ated 200,000 Nicara­guans in the United States without au­thor­iz­a­tion, in­clud­ing those whose asylum claims had been denied. In 1990, Pres­id­ent George H.W. Bush in­struc­ted his at­tor­ney gen­er­al to provide “de­ferred en­forced de­par­ture” status to an es­tim­ated 190,000 Sal­vador­ans flee­ing civil war. In 1997, a dec­ade after Meese’s ini­tial ac­tion, Con­gress passed le­gis­la­tion per­mit­ting these groups’ ad­just­ment to per­man­ent res­id­ence.

In 1989, the Bush ad­min­is­tra­tion provided DED status to 80,000 Chinese stu­dents in the U.S. who feared re­turn­ing to the strife that even­tu­ally led to the Tianan­men Square mas­sacre and later is­sued an ex­ec­ut­ive or­der ex­tend­ing their status. Con­gress then passed the Chinese Stu­dent Pro­tec­tion Act in 1992, three years fol­low­ing the ini­tial ex­ec­ut­ive ac­tion, mak­ing the stu­dents eli­gible for green cards.

OK, but ma­jor ex­er­cises of pro­sec­utori­al dis­cre­tion have been used only for for­eign policy reas­ons, right? Wrong again. Ex­ec­ut­ive ac­tions have been used by every mod­ern ad­min­is­tra­tion on more than a dozen oc­ca­sions to fur­ther purely do­mest­ic policy ob­ject­ives. After do­mest­ic emer­gen­cies—the San Fran­cisco earth­quake, the 9/11 at­tack, Hur­ricanes Kat­rina and Ike, and oth­ers—im­mig­ra­tion of­fi­cials re­laxed en­force­ment ef­forts to ad­vance pub­lic health and safety. Be­gin­ning with Pres­id­ent Carter in 1980, every ad­min­is­tra­tion has in­struc­ted im­mig­ra­tion of­fi­cials to re­duce en­force­ment ef­forts dur­ing the census.

Oth­er ex­er­cises of dis­cre­tion went bey­ond spe­cif­ic emer­gen­cies or events. In 1977, Carter ad­min­is­tra­tion At­tor­ney Gen­er­al Griffin Bell sus­pen­ded de­port­a­tion of about 250,000 people un­fairly denied visas by a quirk in the al­loc­a­tion pro­cess. It was not un­til nearly a dec­ade later, via IRCA in 1986, that all of these cases were re­solved.

In 1990, INS Com­mis­sion­er Gene McNary is­sued a “Fam­ily Fair­ness” policy de­fer­ring the de­port­a­tion of 1.5 mil­lion im­me­di­ate fam­ily mem­bers of people re­ceiv­ing leg­al­iz­a­tion un­der IRCA, build­ing on a more-lim­ited ex­er­cise of dis­cre­tion in 1987 by Ed­win Meese. Three years after Meese’s ori­gin­al ex­ec­ut­ive ac­tion, Con­gress co­di­fied the ac­tion in the Im­mig­ra­tion Act of 1990.

In 1997, Pres­id­ent Clin­ton provided DED status to some 40,000 Haitians pre­vi­ously pa­roled in­to the U.S.. At the end of the 105th Con­gress a year later, le­gis­la­tion passed al­low­ing these Haitians to per­man­ently ad­just their status.

The re­cord is clear: Pres­id­ents of both parties have used dis­cre­tion­ary powers on mul­tiple oc­ca­sions to pro­tect vari­ous groups from de­port­a­tion for an enorm­ously wide vari­ety of reas­ons. Ex­cept for tem­por­ary con­di­tions, Con­gress ac­ted later—of­ten years later—to rat­i­fy the pres­id­ent’s de­cisions.

Look­ing back now, would we re­verse any of these ex­ec­ut­ive ac­tions? Should we have re­turned East­ern Europeans to be­hind the Iron Cur­tain, Cam­bod­i­ans to the killing fields, Ethiopi­ans to a bru­tal civil war, Ir­a­ni­ans to the arms of the ayatol­lah, or Chinese stu­dents to face the tanks in Tianan­men Square? Would we be bet­ter off without the Cubans and Haitians who re­vital­ized South Flor­ida over the past 40 years? Were we wrong to pre­vent the sep­ar­a­tion of 1.5 mil­lion people from fam­ily mem­bers get­ting right with the law un­der IRCA’s leg­al­iz­a­tion?

Many of these ac­tions were con­tro­ver­sial when first an­nounced. But Con­gress later af­firmed vir­tu­ally all of them—without ex­pli­citly re­vers­ing any of them—sug­gest­ing that even­tu­ally they were widely ac­cep­ted. Dec­ades from now, people look­ing back on Pres­id­ent Obama’s im­min­ent an­nounce­ment of broad-scale ex­ec­ut­ive ac­tion will see that he pre­ven­ted the sep­ar­a­tion of fam­il­ies, began fix­ing a badly broken im­mig­ra­tion sys­tem, and im­proved wages, hous­ing, and edu­ca­tion for those re­ceiv­ing leg­al status, thus im­meas­ur­ably en­rich­ing the eco­nomy. They’ll likely see that Con­gress later rat­i­fied his ac­tions, as happened so of­ten be­fore.

And, they’ll won­der: what was all the fuss about?

Charles Kama­saki is seni­or cab­in­et ad­viser at the Na­tion­al Coun­cil of La Raza. A slightly longer ver­sion of this piece, com­plete with cita­tions, is avail­able on the NCLR web­site.

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