Whether his opponents want to admit it or not, President Barack Obama has strong legal precedent to issue administrative relief to families living in the United States. Although the specifics of his executive action on immigration are unclear prior to any announcement, the legality of his actions is without question.
Executive actions are far more common than most people realize. For starters, they have been used for varying purposes by all but two presidents in the history of the United States of America.
Obama isn’t even the first president to use executive actions specifically to defer deportations for immigrants. The practice started with President Eisenhower and has been used by every president since then. But let’s focus on two in particular—Ronald Reagan and George H. W. Bush.
In 1986 Reagan signed the Immigration Reform and Control Act (IRCA), which gave up to 3 million undocumented immigrants a path to legalization under specific criteria. However, IRCA didn’t automatically extend to spouses and children, resulting in “split-eligibility families.”
Because Congress refused to do so, Reagan used administrative authority to blanket deferral of deportation (similar to how DACA does today) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing.
In 1990, President Bush Sr. followed up by issuing an executive action deferring deportation to spouses of IRCA recipients (again, because Congress refused to pass a bill), which protected more than 40 percent of the then-undocumented population.
In September, Long Island Wins published a video that succinctly explains how an executive action works, and what kind of actions can and can’t be taken, as granted by the Constitution of the United States. In it, UCLA Law professor Hiroshi Motomura explains that executive action is intended to fill a gap or address vagueness in existing laws.
DACA, or Deferred Action for Child Arrivals, falls perfectly into that realm.
Deferred action is a form of prosecutorial discretion, one practiced by law enforcement agencies throughout the United States. It’s the same practice that allows police officers to not issue a citation for every instance of jaywalking, or to allow drivers pulled over for traffic violations to get off with a warning.
But don’t take our word for it. More than 130 immigration lawyers said the same thing earlier this year. In a letter written to Obama prior to the elections, a group of legal experts outlined how and why Obama has wide legal authority to issue executive relief to repair our broken immigration system.
“As part of the administration’s legal team that ironed out the details of DACA, I can personally attest that we took pains to make sure the program meticulously satisfied every conceivable legal requirement,” said one of the letter’s authors, Stephen H. Legomsky, a professor at Washington University School of Law and a former U.S. Citizenship and Immigration Services (USCIS) Chief Counsel. “In this letter, 136 law professors who specialize in immigration reach the same conclusion and explain why similar programs would be equally lawful.”