The President’s Precedents

Obama won’t be the first executive to go it alone on immigration. Does that make Republican outrage unjustified?

Obama executive action on immigration reform.
Do the actions of past presidents reveal that President Obama isn’t guilty of the type of executive overreach conservatives are accusing him of, or is Obama using that same history as a pretext for a power grab, one that will set its own dangerous precedent?

Photo by Alex Wong/Getty Images

President Obama is set to unveil his long-promised executive immigration overhaul on Thursday during a primetime address from the White House. The exact details of the president’s plan remain under wraps, but the general framework has been known for the past week: Obama will use his executive authority to shield from deportation as many as 5 million unauthorized immigrants who are the parents or spouses of U.S. citizens or legal residents, and give many of them the ability to work legally in the country.

Democrats see the plan as an extraordinary move from a president doing what Congress should be undertaking but can’t. Republicans see it as an extralegal action from a president eager to do what Congress simply doesn’t want to. But while the battle lines are clear, the fight has now shifted to one over historical precedent. Do the actions of past presidents reveal that Obama isn’t guilty of the type of executive overreach conservatives are accusing him of, or is Obama using that same history as a pretext for a power grab, one that will set its own dangerous precedent?

This question emerged on Monday when the Associated Press published a national story that included this matter-of-fact opening sentence: “Two presidents have acted unilaterally on immigration—and both were Republican.” The report pointed out that both Ronald Reagan and George H.W. Bush extended reprieves from deportation to family members who were not covered by a 1986 congressional overhaul of the nation’s immigration system. Neither man faced the type of blowback that Obama is getting prior to his own announcement.

In fact, there’s a long history of presidents taking immigration action on their own. As the Los Angeles Times documented earlier this week, the list of executives pushing through reforms includes: George W. Bush, who allowed members of the military with green cards to expedite their citizenship process in the wake of 9/11; Bill Clinton, who eased deportation of refugees from El Salvador and Haiti; and Jimmy Carter, who granted a wide range of refugee groups temporary relief from deportation. The list doesn’t stop there: John F. Kennedy created a federal program for Cuban refugees, Harry Truman launched his own commission to study immigration reform after Congress refused his request to do so, and Franklin Roosevelt initiated the Bracero program, which brought 2 million short-term Mexican farm workers to the country.

The common theme in most of these cases is that Congress eventually acted to make the executive actions permanent. Ask an immigration advocate, and she’ll tell you this proves that the presidents were pushing Congress to do what it would have done on its own eventually. Ask an opponent, and she’ll say the biggest reason lawmakers followed the presidents’ lead is because they had no other choice.

The New York Times’ Ross Douthat made that case forcefully earlier this week, responding in part to my piece from last week that pointed out that any action Obama takes is, by definition, only a temporary one. Douthat argued that “once a government has taken the step of formally inviting a particular population to take jobs and (by implication) put down roots, there’s a stronger moral obligation not to consider deportation.” That obligation, meanwhile, comes with political pressure not to take away something that people already have. “Whatever the legal realities, in practical and political terms it’s clear that Obama is expecting this move to create facts on the ground that no future president will be able to reverse,” he wrote.

The counterargument, voiced by many supporters of Obama’s executive action, is that those moral obligations are there all along—it just sometimes takes a president untethered to the realities of congressional lawmaking to deliver on it. “Many of these [earlier presidential] actions were controversial when first announced,” Charles Kamasaki, senior cabinet adviser at the National Council of La Raza, argued earlier this week. “But Congress later affirmed virtually all of them—without explicitly reversing any of them—suggesting that eventually they were widely accepted.” Kamasaki concluded: “Decades from now, people looking back on President Obama’s imminent announcement … [will] wonder: what was all the fuss about?”

Republicans, naturally, remain focused on the here and now, particularly after their strong gains in the midterm elections. The good news for the GOP is that they appear to have found a winning argument in their complaints about executive overreach. A NBC News/Wall Street Journal poll conducted earlier this week found 48 percent of Americans oppose the president going it alone on immigration, while only 38 percent support him doing so.

The problem for Republicans is that it will be easier to win in the court of public opinion today than in a court of law tomorrow. GOP assertions aside, there’s no evidence that Obama’s plan is illegal, and most experts agree that his expected moves have plenty of legal precedent to back them up. Efforts to undercut the president’s immigration overhaul by using the power of the purse also appear to be a long shot. The federal agency most responsible for implementing the executive orders will be U.S. Citizenship and Immigration Services, which pays for itself with revenue generated by immigration applications. That means the GOP can’t defund the agency as some lawmakers have suggested they might, regardless of whether they used a laser-like budget cut or shut down the whole government.

Still, Republicans have vowed to press on, waging war on the president’s plan any way they can. It’s those promises to undo Obama’s actions that actually undercut the rhetoric from both sides. If as Kamasaki suggests, past presidents’ decisions to go it alone were justified because Congress ultimately followed, then Obama’s wait to be proved right is likely to be a long one. At the same time, congressional Republicans’ current quest to kill the president’s reforms makes it seem less likely that they’ll one day be willing to make them permanent simply because they’re the status quo. Both sides, then, can point to the same history books, but neither will find exactly what they’re looking for.