Executive realities and immigration

The Supreme Court will hear a legal challenge to President Obama’s executive action granting deportation relief to millions of law-abiding unauthorized immigrants living in the United States. The challenged executive action, known as “DAPA” (Deferred Action for Parents of Americans and Lawful Permanent Residents), allows parents of children who received protection from deportation under an earlier Obama executive action to apply for such protection themselves. Those who successfully receive deferred action from deportation are then eligible to apply to legally work in the United States.

Conservatives roundly went ballistic in response to this convergence of humanitarian immigration policy and liberal executive power, calling the president’s program “domestic caesarism,” accusing him of unilaterally decreeing “stealth amnesty.” The legal challenge followed a similar tack, asserting that DAPA amounted to a power grab against the will of Congress and a disregard of the president’s duty to take care that immigration laws be faithfully executed. In short, these opponents of executive action argue that the president’s programs are both unprecedented and usurp congressional power.

This is nonsense. As I wrote shortly before the president announced DAPA, these immigration actions do little more than formalize existing law enforcement priorities while adding a modicum of humanitarian dignity — allowing family units to remain intact, and allowing those who won’t be targeted for deportation to earn an aboveboard, non-exploitative living.

But don’t take my word for it. A group of ex-immigration and Homeland Security officials submitted an impressive brief with the Supreme Court in support of the president’s executive actions stating much the same. They show that the president’s immigration actions are hardly unprecedented, but rather follow a long line of similar actions by most other modern presidents. Moreover, these actions are fully within the reach of presidential power to enforce our immigration laws and protect national security.

For instance, President Eisenhower twice took executive action to authorize the admission of whole classes of immigrants into the United States. In 1956, he allowed roughly one thousand foreign-born children who had been adopted by American citizens abroad to gain entry into the United States. While this circumvented immigration quotas enacted by Congress, Eisenhower argued it was justified to keep families together — particularly for armed service members who adopted children while stationed abroad.

Eisenhower also granted U.S. admission to Cubans fleeing communism after Castro’s revolution. This program was continued successively by Presidents Kennedy, Johnson, and Nixon.

Most notably, President Reagan enacted a deferred action program strikingly similar to President Obama’s. Following the 1986 immigration reform law passed by Congress, Reagan launched a “Family Fairness Program.” This program gave deferred action to family members of legalized aliens.

This program went directly against the reform law enacted by Congress. The Senate Judiciary Committee Report accompanying the legislation stated: “the families of legalized aliens will obtain no special petitioning right by virtue of the legalization” and “will be required to ‘wait in line.’” In fact, a legislative amendment fixing this family split was considered and rejected by Congress.

Undeterred by signals to the contrary from Congress, the Reagan administration gave deportation relief to these family members anyway. Reagan recognized the distinction between granted permanent legal status (which only Congress could do, and opted not to) and merely deferring deportation (which his Attorney General was empowered to do). Like Eisenhower, he was also moved by the humanitarian case for maintaining families.

This is strikingly similar to President Obama’s executive actions. Congress considered and rejected the DREAM Act, which would have created a pathway to citizenship for certain immigrant children. Obama then took executive action to provide this class of immigrants with the next best thing: deferred deportation. And to keep families together, he followed this policy up with DAPA, which would protect these children’s parents from deportation, too.

President George H.W. Bush expanded Family Fairness in 1990 to reach even more families. In response, Congress actually passed legislation grant legal status to family members, going further than what Reagan and Bush could do through executive action.

Most other modern presidents, including Ford, Carter, Clinton, and George W. Bush, have employed some variant of deferred action. This is a practical necessity to efficiently enforce the law because of the scarce and insufficient resources that Congress allocates to our immigration agencies.

But deferred action also protects national security and public safety. Those granted protection from deportation feel safe to emerge from the shadows and trust in society’s institutions, like police and hospitals. “Communities are safer,” the brief argues, “when undocumented immigrants who are either victims of crimes or witnesses to crimes feel secure enough to report the crimes to the police rather than avoid contact for fear of being deported.”

It is also well within the executive branch’s power to enforce the law in a way that furthers humanitarian interests, like keeping families together. “Immigration officials at all levels have been called upon for decades to exercise prosecutorial discretion in a manner that is faithful to the rule of law without sacrificing the preservation of, and respect for, family units to the greatest extent practicable,” the brief reminds us.

These former DHS officials bring a reality check to a needlessly overheated policy debate by grounding President Obama’s executive actions in our history. These actions simply continue a long tradition of the president using humanitarian and national security interests to prioritize which classes of unauthorized immigrants to target for deportation.

One more note on this Supreme Court challenge that isn’t in the DHS officials’ brief. The Fifth Circuit Court of Appeals looked at past uses of deferred action and determined that these programs are usually adopted in “response to war, civil unrest, or natural disaster.” The court determined that none of these exigencies were at play here.

However, Central America is in the grips of a growing humanitarian crisis. It is the most deadly region in the world, as violent transnational criminal street gangs operate with impunity throughout the region. They coerce young boys into joining their ranks and come after those who resist. They rape and murder, leaving bloodshed in the streets and terror in the hearts of peaceable neighbors. Governments have been able to quell or control the violence, and indeed, law enforcement is often implicated in aiding the gangs.

This crisis has built up over years, and it was substantially driving migrant flows into the United States. It’s also what makes the ethics of the decision to deport so fraught. The degree of violence faced by people in Central America is rising to the level of an international emergency, and it’s becoming increasingly hard to morally distinguish Central American refugees from those fleeing Syria.

This is the geopolitical context of the president’s executive actions. By all means, let’s focus our limited immigration resources on removing criminals and security threats. But the situation in the home countries of these migrants makes it all the harder to, in good conscience, oppose a policy designed to give some small legitimacy and relief to law-abiding families in the United States.


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