November 25, 2014 | Commentary on Legal Issues, Rule of Law, Immigration, Amnesty

President Barack Obama's Unilateral, and Unconstitutional, Move

According to The Associated Press, as well as some Democratic representatives, President Barack Obama's plan to provide executive amnesty to about 5 million illegal immigrants is no different than unilateral actions by Presidents Ronald Reagan and Georgia H.W. Bush. However, this claim plays fast and loose with history.

It also fails to explain the significant difference between Obama going against the will of Congress, which considered and rejected the DREAM Act on several occasions, and Reagan and Bush, who made administrative corrections designed to carry out congressional intent.

In 1986, Congress, which has exclusive jurisdiction over immigration under the Constitution, passed the Immigration and Reform Control Act (IRCA), providing a general amnesty to almost 3 million illegal immigrants. The Associated Press claims Reagan acted unilaterally when former Attorney General Ed Meese issued a memorandum allowing the Immigration and Naturalization Service to defer deportation where "compelling or humanitarian factors existed" for children of illegal immigrants who had been granted amnesty under IRCA and, in essence, given green cards and put on a path toward being naturalized as citizens.

Reagan, however, was not defying Congress. He was 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 explains, the children of naturalized citizens have a relatively easy process for also becoming citizens to avoid breaking up families. Implementing this policy for minor children whose parents had received amnesty was within the authority delegated to the executive branch and furthered the goals of the amnesty bill that Congress had just passed.

The Bush administration issued a "Family Fairness" policy to also defer deportation of the spouses and children of illegal immigrants who were allowed to seek naturalization through the IRCA amnesty. Shortly thereafter, Bush worked with Congress to pass the Immigration Act of 1990, making the protections provided by this policy permanent.

Significantly, this affected only a small number of immigrants — about 140,000 people — in comparison to Obama's past action (his 2012 implementation of the Deferred Action for Childhood Arrivals program) and his latest unilateral action that will affect millions of immigrants.

Some supporters of Obama also have pointed to other actions by past presidents that allowed immigrants such as Afghans and Nicaraguans to stay in the United States. But those limited actions were based on very special circumstances such as the Soviet invasion of Afghanistan or the Communist-driven civil war in Nicaragua. Another example: China's massacre of students in Tiananmen Square, which led President George H.W. Bush to grant deferred departure to threatened Chinese nationals.

Moreover, our immigration laws contain exceptions permitting temporary protected status when an illegal immigrant's home country is beset with civil strife or natural disaster. America's generous asylum policies also give safe haven to immigrants who would face persecution because of race, religion, nationality, membership in a particular social group or political opinion.

But the special circumstances that prompted Reagan and Bush to act compassionately within legal boundaries set by Congress simply do not exist here. They are a far cry from granting a general amnesty 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, thereby setting himself up as a kingmaker on immigration policy.

By doing so, the president is establishing a dangerous precedent that violates fundamental principles of separation of powers — principles that protect our liberties and maintain a government of laws and not of men.

 - Hans von Spakovsky is a senior legal fellow at The Heritage Foundation.

 - John G. Malcolm is director and senior fellow for the Ed Meese Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

John Malcolm Director, Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in The Milwaukee Journal Sentinel