When Reagan and GHW Bush took bold executive action on immigration

Congressional Republicans are outraged that President Obama may take executive action on immigration reform after the mid-term elections—perhaps by deferring deportations and providing work authorization to millions of unauthorized immigrants with strong family ties to the United States. However, past Republican presidents have not been shy to use the White House’s power to retool immigration policy.  In fact, Obama could learn a lot from presidents Ronald Reagan’s and George H. W. Bush’s executive actions to preserve the unity of immigrant families, and move past Congressional refusal to enact immigration reform.

The story begins on November 6, 1986, when Reagan signed the last comprehensive legalization bill to pass Congress. The Immigration Reform and Control Act (IRCA) gave up to 3 million unauthorized immigrants a path to legalization if they had been “continuously” present in the U.S. since January 1, 1982. But the new law excluded their spouses and children who didn’t qualify. As the Senate Judiciary Committee stated at the time, “the families of legalized aliens…will be required to ‘wait in line’.”   

{mosads}Immediately, these split-eligibility families became the most polarizing national immigration issue. U.S. Catholic bishops criticized the government’s “separation of families,” especially given Reagan’s other pro-family stances. In early 1987, members of Congress introduced legislation to legalize family members, but without success. 

Shortly after Congress’ failure, Immigration and Naturalization Service (INS) commissioner Alan Nelson announced he was “exercising the Attorney General’s discretion” to assure that children would “be covered” by legalization. The administration granted a blanket deferral of deportation (logistically similar to today’s Deferred Action for Childhood Arrivals program) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing. 

Lawmakers and advocates, however, urged Reagan to go further. Spouses and some children who had one parent able to legalize but not the other remained unprotected. A California immigrants’ rights group called this “contrary to the American tradition of keeping families together.” And as Rep. Howard Berman (D-Calif.) told the INS, “If you have the discretion to protect children, why not a family?”

In July 1989, the Senate moved to protect a bigger group—all spouses and children of those who legalized under IRCA. The Senate passed legislation 81-17 that prohibited the administration from deporting family members of immigrants in the process of legalizing and directed officials to grant them work authorization. The House failed to act on the Senate’s bill.

George Bush Sr. then responded in February 1990 by administratively implementing the Senate bill’s provisions himself. As Bush’s INS Commissioner, Gene McNary, stated: “It is vital that we enforce the law against illegal entry.  However, we can enforce the law humanely.  To split families encourages further violations of the law as they reunite.” Under Bush’s “family fairness” policy, applicants had to meet certain criteria, and reapply to the INS every year for extensions.

The Bush administration anticipated its family fairness program could help enormous numbers of immigrants—up to 1.5 million family members, which amounted to over 40 percent of the 3.5 million unauthorized immigrants in the U.S. at the time.

After the Bush administration moved, the House followed. In March 1990, 33 House members introduced legislation with similar provisions to stay deportation of family members. In October, Congress then passed a combined Immigration Act of 1990, with a permanent “Family Unity” provision.  The Act broadened Bush’s family fairness policy to include children under 21 and increased family immigration visas, ultimately providing more families a path to citizenship.  

If voters thought Bush overstepped his authority, the midterm elections didn’t show it. In 1990, the Republicans lost a scant nine House seats and one Senate seat (out of 33 up for election)—far lower than average midterm losses by a president’s party. Bush then signed the Act in November, hailing it as continuing “support for the family as the essential unit of society” and “our tradition of family reunification.” (Bush did issue a signing statement reserving the “authority of the executive branch to exercise prosecutorial discretion in suitable immigration cases.”)

The success of the Reagan-Bush family fairness policy serves as a strikingly similar historical precedent for Obama. Bush Sr. “went big” to treat families fairly—deferring deportations for over 40 percent of unauthorized immigrants. Reportedly, Obama’s actions could be similarly broad and help up to 5 million immigrants—over 40 percent of today’s unauthorized population. Bush Sr.’s actions gave immigrants a safe haven and spurred the House to act without negative impacts in the subsequent midterms. And the Reagan-Bush fairness policy deferred deportations to protect families, compared to previous uses of presidential authority to protect war refugees or immigrants stranded by a foreign policy crisis. 

We don’t know what executive action Obama will take. But we can say with certainty that presidents Ronald Reagan and George H. W. Bush led the way.   

Noferi is an enforcement fellow at the American Immigration Council.