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Obama’s Executive Action Isn’t Outrageous. It’s How Immigration Reform Gets Done.

20 Nov

Since 1965, almost every legislative change on immigration has been preceded by a decision from the White House to allow some undocumented foreigners to stay here legally.

The playbook is pretty simple: Parole some undocumented people. Wait for the furor to die down. Sign a law a few years later to legalize them permanently.

It is how presidents for the past 40 years, Republicans and Democrats, have handled the thorny problem of immigration. This is the path that President Obama has chosen in exercising executive authority to legalize some 4 million unauthorized immigrants currently in the United States.

Obama: ‘I Committed to Fixing This Broken Immigration System’

“It’s big money. It’s a federalism issue. It’s bottom-up,” said Rick Swartz, an immigration lawyer who negotiated legalization for undocumented Haitians in the early 1980s and was involved in crafting the 1986 immigration law. “We won eventually.”

Obama’s action will put the congressional and administrative policy players in place to create a bigger immigration change, if they choose to accept the mission. Swartz is now lobbying Republicans in Congress to put together their own immigration solution. If he succeeds (a big if), it’s hard to imagine that a serious GOP draft bill would leave out the people that Obama is now legalizing.

 Advocates who have been in regular contact with White House officials on immigration say the president waited longer than they would have preferred to act on his own because he was hoping that congressional Republicans would follow through on private assurances that they would pass something. They didn’t, and now Obama is forcing their hand.

“This is not ideal. This is not the way we wanted it happen,” said Sojourners President Jim Wallis, who is part of a broad religious coalition that has lobbied both Congress and the president to change immigration law. “At least he’s acting. He’s causing things to happen. So the Republicans will now have to respond.”

There is a rich history behind this strategy. Swartz says the myriad small steps taken by presidents over the last 15 years—everything from individual deportation deferrals to repeated extensions of “temporary protected status” for Central American hurricane refugees or civil-war victims—are “the mirror image” of what happened more than 30 years ago.

In 1980, some 125,000 Cubans entered the United States illegally under a temporary exodus sanctioned by Cuban President Fidel Castro due to Cuba’s economic downturn. Some of these Cuban arrivals had recently been released from prison. Still, regardless of criminal record, they were granted temporary legal status in the United States by President Carter. By 1984, they were given green cards under a provision in a law that had passed almost 20 years earlier, the 1966 Cuban Adjustment Act.

In that same year, about 92,000 Haitians had fled to the United States from a brutal dictatorship. In their undocumented status, they also were “paroled” and given a temporary legal status. Their legal presence was solidified in 1986 when President Reagan signed the Immigration Reform and Control Act, which is best known for granting amnesty to some 3 million unauthorized immigrants. That law also included a special provision legalizing the Haitian immigrants from the 1980 wave.

In 1990, President George H.W. Bush penned a blanket deferral of deportations for 1.5 million children and spouses of people who had received amnesty in 1986. Those people hadn’t qualified for amnesty on their own because they couldn’t demonstrate continuous presence in the United States. Their new temporary legal status was then made permanent, and codified into law, later that year under the Immigration Act of 1990.

This is how immigration law actually gets changed. Since the 1965 Immigration and Nationality Act, which is still the underpinning of our current policy, almost every legislative change on immigration has been preceded by a decision from the White House to allow some people—be they undocumented Vietnamese refugees, Chinese Tiananmen Square participants, or spouses of amnesty recipients—to stay here legally.

At first glance, the scope appears broader this time around, but that is only because the total population of unauthorized immigrants has grown to about 11 million. In the past, more-targeted deportation deferrals have numbered in the hundreds of thousands, rather than the millions. Obama is poised to give temporary legal status to 4.4 million of those people on his own, which is greater than the 3 million who were eligible for amnesty under a congressionally authorized statute. But that 1986 amnesty covered almost everyone who was in the country illegally at the time. Obama, by contrast, will leave out more than half of the unauthorized population.

“The undocumented population is much greater. Proportionally, [Obama’s action] might not be that much different,” said Greg Chen, advocacy director at the American Immigration Lawyers Association. As a point of comparison, the 1990 deferrals from Bush covered 40 percent of the undocumented population at the time. That’s roughly equivalent to the coverage Obama is offering now.

Advocates say the president isn’t doing as much as he is legally capable of to help unauthorized immigrants, but they acknowledge that even though his executive order isn’t everything they want, it is carefully crafted to stay consistent with past White House practices. That won’t stop critics from blasting Obama’s actions, but it gives him a solid rebuttal.

“There is a long history of presidents and administrations of both political parties taking prosecutorial discretion,” said Chen, referring to the legal term that immigration officers use when they choose not to pursue the forced removal of an unauthorized immigrant. That discretion is in place so that immigration officers can focus on removing the bad people—criminals, drug dealers, etc.—rather than the house cleaner without papers.

“In policy and principle, he’s saying ‘You’re not the ax murderer, you’re the equivalent of a jaywalker,’ ” Chen said.