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A Project of The Annenberg Public Policy Center

Obama’s Actions ‘Same’ as Past Presidents?

President Obama repeatedly claimed that there is presidential precedent for the executive actions he took on immigration. But are the actions Obama announced really the “same kinds of actions” taken by past presidents?

Obama’s use of executive actions to defer deportation for up to 5 million people living in the country illegally relies on similar legal principles used by past presidents, although the issue of presidential authority may ultimately have to be decided in federal court. But there are some fundamental differences between Obama’s actions and those taken by past presidents.

The actions taken by Presidents Ronald Reagan and George H.W. Bush — examples often cited by White House officials — were attempts to address ambiguities in an immigration law that was passed by Congress. Obama’s executive actions are different. They are a response to congressional failure to pass a law, and they affect a far greater number of immigrants currently living in the country illegally.

In his prime time speech, Obama twice emphasized that he was simply taking the same kinds of actions that were taken by past presidents.

Obama, Nov. 20: But until that happens, there are actions I have the legal authority to take as president – the same kinds of actions taken by Democratic and Republican presidents before me – that will help make our immigration system more fair and more just.

Obama: The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every single Democratic president for the past half century.

White House spokesman Josh Earnest was even more specific in the days leading up to Obama’s announcement. On Fox News, Earnest said the authority invoked by Obama is “consistent with steps that were taken by President Reagan, President George H.W. Bush and other presidents over the course of history that have used their executive power to address problems with our broken immigration system. President Obama is going to do the same thing.”

In a Nov. 18 press briefing, Earnest went into greater detail about the first Bush administration. “Even somebody like President George H.W. Bush took steps to expand the Family Fairness Program to cover more than 1.5 million unauthorized spouses and children. This represented 40 percent of the undocumented population of roughly 3.5 million undocumented immigrants in the country at that time,” Earnest said.

In a recent op-ed, Reps. Nancy Pelosi, Luis Gutierrez and Zoe Lofgren also dropped President Dwight D. Eisenhower’s name.

Pelosi, Gutierrez, Lofgren op-ed, Oct. 30: The fact is, just as presidents before him, President Obama has broad authority to make our immigration system better meet the needs of our country and reflect our shared values. And every Administration since President Dwight D. Eisenhower has used executive authority to do just that.

We’ll address these chronologically starting with Eisenhower, who in 1956 took executive action to allow hundreds of foreign-born orphans to come to the U.S. with their adoptive parents. He said action was necessary because quotas established by the Immigration and Nationality Act and the Refugee Relief Act would have otherwise prevented U.S. parents, many of whom served overseas in the military, from bringing their adopted children home with them.

That same year, Eisenhower also took action to institute an emergency refugee assistance program to aid thousands of Hungarian refugees who fled their home country during a conflict with the Soviet Army. Nearly 32,000 Hungarian refugees were admitted to the U.S. under provisions of the Immigration and Nationality Act, which gives U.S. Citizenship and Immigration Services the authority to parole individuals into the U.S. on a temporary basis for urgent humanitarian reasons or significant public benefit.

Then, late in 1960, Eisenhower took action to implement a similar program for Cuban refugees seeking asylum in the U.S. after fleeing the Communist nation. The program, which Eisenhower began with contingency funding via the Mutual Security Act, continued into the Clinton administration.

Eisenhower’s actions were not at all like the one being undertaken by Obama.

The actions taken by Reagan and George H.W. Bush bear more resemblance to Obama’s. But they came in response to an immigration overhaul approved by Congress, as opposed to Obama’s reaction to congressional inaction.

Congress passed the Immigration Reform and Control Act in 1986, which allowed immigrants who had been living continuously in the U.S. since at least Jan. 1, 1982, to apply for temporary, and later permanent, residency. Reagan signed it into law. The law provided legal permanent residency to 2.7 million immigrants who were living in the U.S. illegally, 1.1 million of whom went on to become American citizens.

But concerns were soon raised about the possibility of families being broken up if a spouse or child was ineligible for residency under the law’s guidelines.

According to a 1992 paper written by John W. Guendelsberger for the Center for Migration Studies of New York, Congress intentionally sidestepped this touchy issue with ambiguous language in the law regarding the status of mixed eligibility families. The Immigration and Naturalization Service initially took a “hard-line position,” stating that any ineligible family members would be subject to deportation.

Later in 1987, however, “the INS issued a policy statement and a memorandum peremptorily entitled ‘family fairness’ guidelines which slightly liberalized its approach to family unity for family members of amnesty applicants,” Guendelsberger explained. Specifically, the new Reagan administration guidelines extended protection from deportation to minor children who were living with parents who had applied for legalization.

In testimony before Congress, INS Commissioner Alan C. Nelson, a Reagan appointee, said the policy only applied to children if both of their parents qualified for residency. As for spouses, UPI reported on Oct. 22, 1987, that the guidelines announced by Nelson stated only that in order “for an ineligible spouse to be allowed to stay, certain compelling or humanitarian factors must exist in addition to the family relationship and hardships caused by separation.”

A little more than two years later, the George H.W. Bush administration used its executive powers to further address the potential separation of families.

As we said, the INS guidelines issued under Reagan granted relief only to children of the so-called mixed eligibility families who did not qualify under the new law but their parents did. On Feb. 2, 1990, INS Commissioner Gene McNary issued a memo that changed that.

McNary announced that INS would scrap the three-year-old Reagan-era guidelines and issue new guidelines that expanded deportation deferrals to include not just children but also spouses of newly legalized residents (provided the spouses and children were living in the United States prior to Nov. 6, 1986, which is when the 1986 law took effect, and provided that the children were unmarried and under 18 years old). It also gave these children and spouses the authorization to work — which was something that the Reagan-era guidelines did not do, as explained at the time by the Los Angeles Times.

Los Angeles Times, Feb. 3, 1990: McNary’s directive provides a renewable, one-year shield against deportation to spouses and children under 18 who can establish that they have been living in the United States with a legal alien family member since Nov. 6, 1986, and have not been convicted of a felony or three misdemeanors in this country.

The policy will enable families to stay together while applications for permanent visas wind through a 10-year bureaucratic maze.

Under the old policy, children, but not spouses, of newly legalized aliens were eligible for such relief. No work authorization was provided. And regional INS directors had wide latitude to determine whether “humanitarian circumstances” were “compelling” enough to provide relief.

Earnest said Bush’s action granted relief to “more than 1.5 million unauthorized spouses and children.” We could not independently confirm that number, and the White House could not provide any data to support it.

The 1.5 million figure comes from a March 5, 1990, article in the New York Times, which cited McNary as the source. Update, Nov. 24:  McNary told Washington Post Fact Checker Glenn Kessler in a Nov. 24 article that he could not recall using the 1.5 million figure. “I would take issue with that. I don’t think that’s factual,” McNary told Kessler. However, Earnest said at a Nov. 24 press briefing that McNary provided the 1.5 million estimate during a Feb. 21, 1990, congressional hearing.

Other accounts at the time gave estimates as low as 100,000. An INS spokesman at the time was quoted by the Philadelphia Inquirer as saying, “There’s no way to count them. It may run to a million.”

In his 1992 paper, Guendelsberger, an appointee of Attorney General Eric Holder to the U.S. Board of Immigration Appeals, wrote that “as many as 250,000 minor children and spouses” could benefit from Bush’s policy. His source was a Feb. 26, 1990, article in Interpreter Releases, a weekly publication, widely read by immigration lawyers, that writes about immigration guidelines and laws.

The Interpreter Releases article, which cited actual data after the first eight days of the Bush policy, said “INS’ own current ‘guesstimate’ is that no more than 250,000 aliens will apply for the family fairness program.”

The Bush policy, known as the Family Fairness Program, was not in effect long. On Nov. 29, 1990, Bush signed the Immigration Act of 1990 that, among other things, addressed the mixed eligibility families created by the 1986 immigration law. The new law created the Family Unity Program, which further increased the number of people eligible for protection from deportation.

The 1990 law gave “blanket protection from deportation and work authorization for all spouses and unmarried children who were in the United States and who were related to a ‘legalized alien’ prior to May 5, 1988. In order to benefit from the family fairness program, the spouse or child of a ‘legalized alien’ must apply to the INS for voluntary departure status,” as explained in Guendelsberger’s paper. In addition to changing the eligibility date from 1986 to 1988, the law also raised the eligibility age to 21 years old for children — two changes that increased the number of people eligible for protection.

Update, Nov. 24: Kessler, the Washington Post Fact Checker, wrote that “fewer than 50,000 applications” for deferred deportation had been submitted under Bush’s Family Fairness Program before the 1990 law superseded his executive actions. The Post cited an Oct. 1, 1990, Miami Herald story, and a 1994 report by the federal Select Commission on Immigration and Refugee Policy. “Surprisingly few newly legalized immigrants are taking advantage of a program that could help their spouses and children avoid deportation,” the Herald wrote.

We can’t speak to whether these actions by previous presidents provide legal precedence for Obama’s actions. The White House argues they do (though we noted in a previous story Obama wasn’t always of that opinion), and Republican leaders argue they do not.

While it will likely ultimately be up to the federal courts to decide, a Congressional Research Service report in December 2013 found that courts have provided “wide latitude” to presidents to use “prosecutorial discretion” when it comes to enforcing immigration laws. Perhaps foreboding what’s to come, however, the report concluded that Congress “may still be able to influence the implementation of … discretion-based policies by the immigration authorities, including by engaging in stringent oversight over the DHS program or by exercising its ‘power of the purse’ to prohibit DHS and its components from implementing particular policies related to the exercise of prosecutorial discretion that Congress does not support.”

On Fox News, Sen. Ted Cruz suggested just such a strategy to block Obama’s plan.

— Robert Farley, Eugene Kiely and D’Angelo Gore