Commentary

Obama’s Unilateral Amnesty Really Will Be Unprecedented – and Unconstitutional

Hans von Spakovsky John G. Malcolm
By Hans von Spakovsky and John G. Malcolm | November 19, 2014 | 2:37 PM EST

According to the Associated Press, as well as House Minority leader Nancy Pelosi, D-Calif., Reps. Luis Gutierrez, D-Ill., and Zoe Lofgren, D-Calif.,  President Barack Obama’s plan to provide executive amnesty to more than five million illegal immigrants is no different than unilateral actions that were taken by Presidents Ronald Reagan and George H.W. Bush.

However, this claim plays a bit fast-and-loose with history and fails to explain the significant difference between Obama going against the will of Congress, which considered and rejected the Development, Relief, and Education for Alien Minors (DREAM) Act on several occasions, including when both houses of Congress were controlled by the president’s party, and Reagan and Bush who made administrative corrections designed to carry out congressional intent.

Article 1, Section 8 of the Constitution gives Congress exclusive authority to “establish an uniform Rule of Naturalization ….”  And it is the president’s constitutional duty, under Article II, Section 3, to “take Care that the Laws be faithfully executed ….”

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 grant deferred departure to threatened Chinese nationals.

Moreover, our immigration laws contain exceptions permitting temporary protected status when an illegal alien’s home country is beset with civil strife or recovering from a natural disaster.   America’s generous asylum policies also give safe haven to aliens who if returned to their home countries would face persecution because of race, religion, nationality, membership in a particular social group or political opinion.  The special circumstances that prompted Reagan and Bush to act compassionately, but also within the legal boundaries set by Congress, simply do not exist here.   They are a far cry from granting what is in effect a general amnesty complete with benefits that legal immigrants must wait years to obtain.

In short, while Reagan and Bush worked closely with Congress to implement the comprehensive legislation that Congress had passed (in the case of Reagan) or would pass shortly thereafter (in the case of Bush), Obama is bypassing Congress entirely. He is unconstitutionally revising existing law and, without Congressional approval, imposing new ones  that have been explicitly rejected by Congress time and time again, thereby setting himself up as a kingmaker (or king) on immigration policy.

By doing so, the president is establishing a dangerous precedent that violates fundamental principles of separation of powers that serve as a bulwark to protect our liberties and that established a government of laws and not of men.

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.

John G. Malcolm oversees The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law as director of the think tank’s Edwin Meese III Center for Legal and Judicial Studies.

Editor's Note: This piece was originally published by The Heritage Foundation.

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