Today is the big day, and the Progressive media is in full spin to mitigate the anger Americans are expressing about President Obama’s decision to offer legal status to millions of people who broke the law. That spin has taken many forms, including the novel arguments that the executive branch is empowered to act whenever the legislative branch declines and that the executive branch’s enforcement discretion includes the affirmative grant of benefits not otherwise authorized by law. Most recently, however, Progressive columnists have settled on an old favorite tactic: justify Democratic misbehavior by claiming (falsely, as you will see) that a Republican did it first.

Democrats across print, web, and cable media have been repeating the claim that Obama is doing nothing more than what Presidents Reagan and Bush 41 did first. They point to executive actions taken in 1987 and 1989 that deferred the removal of certain aliens. But, as usual for Progressive commentators, they elide the crucial facts that distinguish those actions from Obama’s. The sign that you’re being swindled isn’t so much what the con artist tells you, but what he does not tell you. What the Progressive commentariat is not telling you is that the Reagan and Bush immigration orders looked nothing like Obama’s creation of a new, open-ended form of immigration relief.

Legally, illegal immigration is dealt with in two steps. First, the Department of Homeland Security (in Reagan and Bush 41’s time, the Immigration and Naturalization Service, or INS) has to show that an alien is removable (deportable, in Reagan and Bush 41’s lingo) from the United States. Then the alien gets a chance to show that they are eligible for some form of relief from removal or deportation. Ordinarily, those forms of relief are created by Congress. There is asylum and adjustment and cancellation of removal, and so on and so forth, all set down in statute by Congress over the decades (more than a century in the case of certain waivers) in an overlapping mess of eligibilities and disqualifiers and discretionary decisions.

The legal reasoning for Reagan/Bush’s executive action on immigration is the same justification for Obama’s action http://t.co/iUO2N2HNe4



Danny Vinik (@DannyVinik) November 19, 2014

With some regularity, however, the existing forms of immigration relief have been overtaken by circumstances. When that has happened, Congress steps in. In 1986, faced with a large and growing population of illegal aliens, Congress created a new, time-limited form of immigration relief for certain aliens who, among other things, had to have come to the United States more than six years previously. This is the much ballyhooed Reagan amnesty. It was, unfortunately, riddled with fraud in its execution, the uncovering of which is still roiling the immigrant community. But even setting that aside it left President Reagan with a moral dilemma. Congress’ amnesty was large—just shy of 3 million people—and it had the unanticipated effect of splitting up freshly-legalized parents from their illegally-present minor children who did not qualify for relief.

What the Progressive commentariat is not telling you is that the Reagan and Bush immigration orders looked nothing like Obama’s creation of a new, open-ended form of immigration relief.

So Reagan, seeing this family unity problem that Congress had not anticipated or addressed when it granted amnesty to millions of parents, issued an executive order to defer the removal of children of the people who had applied for immigration amnesty under Congress’ new law. He allowed those children to remain in the United States while their parents’ applications for amnesty were pending. A few years later, Bush 41 extended this bit of administrative grace to these same children plus certain spouses of the aliens who had actually been granted immigration amnesty under Congress’ new law.

Congress, though it had desired to grant amnesty, had not considered and not included the spouses and children. Importantly, nor had it excluded them. So Presidents Reagan and Bush 41 filled that statutory gap. “What do we do with spouses and children?” INS asked. “Well,” the executive branch leaders said, “defer their deportation. Decline to exercise your lawful authority for the particular cases that are related to those Congress has offered amnesty.”

These Reagan and Bush 41 executive actions were obviously different than what Obama is doing now. They were trying to implement a complicated amnesty that Congress had already passed. Congress’ action was a form of immigration relief that obviously fit within our constitutional system. Moreover, Congress left a gap when it came to immediate family members, including minor children, of individuals who qualified for the amnesty. Presidents Reagan and Bush 41 forbore from deporting people in that select group.

Obama is clearly contravening both ordinary practice and the wishes of Congress—as expressed in statute—by declaring an amnesty himself. This is nothing like Reagan’s or Bush’s attempts to implement Congress’ amnesty.

Obama, in contrast to Reagan and Bush 41, is not trying to implement a lawfully created amnesty. There has been no congressional amnesty. In fact, there has been no immigration action from Congress in the past few years except the post-9/11 REAL ID Act of 2005, which made it harder, not easier, for aliens to qualify for immigration relief. More than that, Congress declined to pass a legalization of the type Obama is issuing during both Obama’s term and in a hotly-contested bill during President Bush 43’s term.

Thus, Obama is clearly contravening both ordinary practice and the wishes of Congress—as expressed in statute—by declaring an amnesty himself. This is nothing like Reagan’s or Bush’s attempts to implement Congress’ amnesty. The progressive media’s claims otherwise are blatant lies, relying on their readers’ ignorance of events in the late 1980s and early 1990s. Such attempts should be rejected wherever they are found.

If Obama wants to justify his lawless immigration action, he will have to do it some other way than citing (blaming, more like) prior Republican presidents. They, to their credit, were trying to implement Congress’ will. Obama, on the other hand, has declared that his government will act despite Congress, or, I suspect, to spite Congress. Such pettiness finds no support in the presidencies of Reagan and Bush.