Have prior U.S. Presidents used executive actions to change immigration policy

Question

I only caught 2 seconds of it on the TV news, but I heard President Obama claim that what he was doing with respect to Immigration Policy was not novel and in fact X-number of prior presidents had done the same thing (so we should all just chill out).

Video of Obama's speech at Del Sol High School

Transcript

But the actions I’ve taken are not only lawful, they’re the kinds of actions taken by every Republican President and every Democratic President for the past half century. (Applause.) Ronald Reagan took action to keep families together. The first President Bush took action to shield about 40 percent of undocumented immigrants at the time. This isn’t something I’m doing as if it’s never been done. This kind of thing has been done before.

Are actions taken by prior presidents comparable to what President Obama is doing with regards to immigration as he claims they are?

Answer 1

I would say the answer is yes and no. I think you need to parse it into several different questions.

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Has this been done before? — Yes.

Yes, on numerous occasions the President has extended "Executive Amnesty". Here are a sampling (not at all inclusive) of such actions:

• Eisenhower: 600,000 Cubans were allowed to immigrate fleeing Castro. (PDF File)

• Reagan: Allowed 15,000 Ethiopians to stay in the US rather than be deported.

  He also deferred deportation of the children of 100,000 families. This was an expansion to an amnesty bill that had been passed by congress before, which had granted amnesty to 3 million undocumented immigrants.

• Bush (G.H.W.): Deferred deportation of 1.5 Million spouses and children.

• Clinton: Expedited citizenship of people who served in the Gulf War

• Bush (GW): Also expedited citizenship for people serving in the military.

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So should we all just chill out? — That's not answerable.

What about the part, as you so elegantly and colloquially stated: "(so we should all just chill out?)"

Due to the numerous precedents, calling for actions such as impeachment or a government shut down are partisan bickering and not at all called for. Sadly, we don't have any way to measure if we really should be chill, or concerned. The main considerations and issues as I have been able to gather from the talking heads are:

• Will the newly minted legal status cause a burden on the welfare system?
• Will newly minted tax payers help the US tax base?
• Will this alleviate stresses and demands on the immigration courts and other services involved with processing immigrants?
• Will this keep families together?
• Does the scope of this make it somehow intrinsically different?

At this point, we have no way of specifically answering these questions.

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Is this exactly the same as previous times? — No.

As to the "no" portion of the answer, I think the main difference is simply a matter of scale at this point: the Pew Hispanic Center estimated in March 2006 the number of illegal migrants in the US to range between 11.5 and 12 million, all of whom may not be concerned by this executive order (the number being tossed about in various media outlets is 5 million). This action has the potential to affect more people than any other executive amnesty that I am aware of.

Answer 2

The answer is more "no" than yes, though it's more murky than 100% clarity.

The same Politifact analysis that Larian referenced includes the most relevant fact (and few other less relevant ones).

1. The most important factor pointing to the answer being "no" is as follows.

   The question asks whether Presidents "used executive actions to change immigration policy".

   Now, that is admittedly a bit of a vague wording (change can mean adjust, or drastically change), but the reason why the whole thing was so controversial was a very specific fact, i.e.:

   Obama did it in direct contradiction to the wishes and intent of legislative branch.

   Politifact says,

   What was Congress’ role? Critics argue that Obama’s action is different because he did it in the face of opposition from Congress (at least from the House), whereas the Reagan and Bush orders were largely undertaken to fix "loose ends," as Krikorian characterizes them, from a specific immigration law.

   The American Immigration Council cites several examples in which legislation was pending at the time the presidents took their action, including parole for orphans (under Eisenhower), Cubans fleeing Fidel Castro (presidents Richard Nixon, John F. Kennedy and Lyndon B. Johnson) and deferred action for battered immigrants (President Clinton).

   Still, there’s broad agreement that the degree of tension between Congress and the president was unusually large under Obama.

   That includes the incoming House, incoming Senate, and even standing House if you reflect the facts that they don't have enough votes to pass such a bill over a filibuster attempt.

   The "incoming" part is especially important as the executive action's timing was clearly driven by the fact of partisan change in 2015 incoming Senate.

   Basically, he effectively wrote a new law in that action, at least in spirit even if he can somehow lawyer out of that characterization in front of SCOTUS on a technicality^[1].

   This specific point is what makes Obama's executive drastically different from every other prior immigration related executive order, all of which were done in line with the overall wishes of the law as passed by legislature, or at least the will of the legislature in spirit:

   • Some were to plug holes in existing legislation (usually small ones, except for G.H.W.Bush's)

     Even Bush Sr's action - which was the only one remotely similar to what Obama did by either scale OR scope - was done (quoting politifact) in context of:

     It was a consequence of a 1986 immigration overhaul that granted legal status for many, but not all, illegal immigrants.

   • Some were to speed up outcomes in context of pending legislation that they were in line with.

2. Also, some other factors make this order almost unprecedented, with exception of G.H.W. Bush's order - meaning it was drastically different from 38 out of 39 precedents that the pro-amnesty side cites to support Obama:

   • Size is drastically different:

     At between 4 million and 5 million potential beneficiaries, Obama’s is easily the biggest such action ever taken by a president, at least in raw numbers.

     The rest of them being well less than a million and usually well under 100k - and the only ones above 100k being clear refugee situations out of warzones)

     The only outlier was G.H.W. Bush's where the size ranges from 150k and 1.5Mil depending on which partisan you ask.

   • Scope is drastically different:

     Many of the past presidential actions were targeted at specific populations that were experiencing humanitarian or political crises in their home country.

     Obama’s, by contrast, targets broad classes of people of any nationality. Broader, less country-specific actions are not unprecedented -- the Reagan and George H.W. Bush actions were roughly similar in design. But numerically, they account for a distinct minority of the 39 examples in the American Immigration Council’s report

   • What undocumented immigrants could receive is drastically different:

     Krikorian notes that Obama has not just deferred deportation for certain undocumented immigrants but gone a step further, allowing them to receive work permits and other related benefits, such as Social Security numbers.

     The only outlier here is, again, G.H.W. Bush's executive order.

   So, these extra factors not related to Congressional agreement:

   • point to a "no" based on Obama's own wording ("every Republican President and every Democratic President")

   • but "yes" to a narrower-scoped premise that he wasn't at least the first president to do something similar (G.H.W. Bush did something similar - But he was the only one and he did NOT do so in opposition to legislative branch).

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_{[1] - Obama administration has a history of sliding things by SCOTUS on a technicality that contradicts the spirit of things. The most substantial was of course a SCOTUS challenge to Obamacare, which SCOTUS upheld solely because individual mandate - the central part of the law - was claimed to be a tax in the letter of the law... whereas the architect of Obamacare directly admitted that it was NOT a tax}