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

National Journal (Opinion)

By Charles Kamasaki

October 1, 2014

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

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.

For more information, go to:  www.beverlyhillsimmigrationlaw.com