October 21, 2021

Sorry, liberals: Reagan and Bush 41 did not defy Congress with executive amnesty

In 1986, Congress passed the Immigration and Reform Control Act (IRCA), which provided a general amnesty to almost three million illegal immigrants.  According to the Associated Press, Reagan acted unilaterally when his Immigration and Naturalization Service commissioner “announced that minor children of parents granted amnesty by [IRCA] would get protection from deportation.”  In fact, in 1987 former Attorney General Ed Meese issued a memorandum allowing the INS to defer deportation where “compelling or humanitarian factors existed” for children of illegal immigrants who had been granted amnesty and, in essence, given green cards and put on a path towards being “naturalized” as citizens.  In announcing this policy, Reagan was not defying Congress, but rather carrying out the general intent of Congress which had just passed a blanket amnesty for millions of illegal immigrants.

As the U.S. Citizenship and Immigration Services website itself explains, the children of individuals who become citizens through naturalization have a relatively easy process for also becoming naturalized citizens to avoid breaking up families. And as Mark Krikorian of the Center for Immigration Studies points out, the INS was, as a practical matter, going to “look the other way under certain circumstances with regard to minor children both of whose parents received amnesty.”  This was well within the authority delegated to the executive branch and a “legitimate exercise of prosecutorial discretion.”

The Bush administration relaxed these technical requirements under a “Family Fairness” policy to defer deportation of the spouses and children of illegal immigrants who were allowed to stay in this country and seek naturalization through the IRCA amnesty. Shortly thereafter, Bush worked with Congress to pass the Immigration Act of 1990, which made these protections permanent.  Significantly, the Bush policy and the 1990 Act affected only a small number of immigrants—about 180,000 people —in comparison to Obama’s past (his 2012 implementation of the Deferred Action for Childhood Arrival program) and anticipated unilateral actions that will affect millions of immigrants.

Some supporters of Obama’s unilateral actions on immigration have also pointed to other actions by past presidents that allowed immigrants such as Afghans and Nicaraguans to stay in the U.S. But those limited actions were based on very special circumstances such as the Russian invasion of Afghanistan, the Communist-driven civil war in Nicaragua or the Chinese massacre of students in Tiananmen Square that led Bush to granted deferred departure to threatened Chinese nationals.

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