National Review Online, November 18, 2014
The biggest problems that we're facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm President of the United States of America.
It's interesting that the anti-borders crowd seems to have conceded the point I made in August that most past executive grants of status to illegal aliens were the consequence of foreign crises in the illegals' home countries and thus not relevant to the current discussion. These were, as Ross Douthat's trenchant column pointed out Sunday, "modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home."
So the fallback position of those claiming precedent is to grasp at two actions taken by Reagan and the elder Bush that came in the wake of the 1986 Immigration Reform and Control Act (IRCA) amnesty.
The Reagan administration action that amnesty advocates point to is simply irrelevant to the current case and trumpeted only because Reagan's name is attached to it. In what was a legitimate exercise of prosecutorial discretion shortly after passage of the 1986 law, INS announced that as a practical matter it would look the other way under certain circumstances with regard to minor children both of whose parents received amnesty but who did not themselves qualify for the amnesty. It granted no work permits, Social Security numbers, or driver's licenses. In the context of trying to implement the convoluted IRCA amnesty, I might well have done the same thing.
George H. W. Bush's 1990 "family fairness" policy is at least somewhat germane, in that it provided for renewable "voluntary departure" (i.e., amnesty) for certain spouses and children of amnesty beneficiaries, including work authorization. But it is no precedent either, for three main reasons:
First, its size and scope. Despite claims at the time that "as many as 1.5 million" illegal aliens might benefit from the policy, the actual number was much, much smaller. In 1990, Congress passed legislation granting green cards to "legalization dependents" — in effect codifying the executive action Bush had taken a just few months earlier. That (lawful) measure actually cast the net wider than Bush's action, and yet only about 140,000 people took advantage of it — less than one-tenth the number advocates claim. Scale matters here; Bush's action cannot meaningfully be described as a precedent for Obama's scheme that would be 30 or 40 times larger.
Second, both Reagan's and Bush's moves were cleanup measures for the implementation of the once-in-history amnesty that was passed by Congress. In other words, it was a coda, a tying up of loose ends, for something that Congress had actually enacted, and thus arguably a legitimate part of executing the law — which is, after all, the function of the executive. Obama's threatened move, on the other hand, is directly contrary to Congress's decision not to pass an amnesty. In effect, Bush was saying "Congress has acted and I'm doing my best to implement its directives," while Obama is saying "Congress has not done my bidding, so I'm going to implement my own directives."
Finally, in the same 1990 immigration law that codified Bush's "family fairness" directive, Congress rejected further ad hoc presidential amnesties by creating Temporary Protected Status (TPS). The various unilateral actions presidents had taken to amnesty small groups of illegal aliens over the years — Extended Voluntary Departure and Deferred Enforced Departure were among the Orwellian euphemisms deployed — were clearly seen as abuses of the discretion which Congress granted the president. TPS was intended to limit that discretion in granting legal status, including work permits, to illegal aliens, by limiting such grants to clearly specified circumstances — such as when a country suffered an earthquake or hurricane — and imposing specific procedures upon the executive. And to make certain that future executive actions didn't simply become a means of naturalizing entire populations of illegal aliens, the TPS law requires any bill addressing naturalization of TPS recipients has to pass the Senate with a 60 percent super-majority.
It is absurd for Obama to claim that the very executive overreach that prompted Congress to impose these limits established a precedent for even greater executive overreach today.
Whatever their merits, the Reagan and Bush measures were modest attempts at faithfully executing legislation duly enacted by Congress. Obama's planned amnesty decree is Caesarism, pure and simple. "Precedent" isn't the right word for the Obama crowd's invocation of Reagan. The right word is "pretext."