In 1989, the Bush administration provided DED status to 80,000 Chinese students in the U.S. who feared returning to the strife that eventually led to the Tiananmen Square massacre and later issued an executive order extending their status. Congress then passed the Chinese Student Protection Act in 1992, three years following the initial executive action, making the students eligible for green cards.
OK, but major exercises of prosecutorial discretion have been used only for foreign policy reasons, right? Wrong again. Executive actions have been used by every modern administration on more than a dozen occasions to further purely domestic policy objectives. After domestic emergencies—the San Francisco earthquake, the 9/11 attack, Hurricanes Katrina and Ike, and others—immigration officials relaxed enforcement efforts to advance public health and safety. Beginning with President Carter in 1980, every administration has instructed immigration officials to reduce enforcement efforts during the census.
Other exercises of discretion went beyond specific emergencies or events. In 1977, Carter administration Attorney General Griffin Bell suspended deportation of about 250,000 people unfairly denied visas by a quirk in the allocation process. It was not until nearly a decade later, via IRCA in 1986, that all of these cases were resolved.
In 1990, INS Commissioner Gene McNary issued a "Family Fairness" policy deferring the deportation of 1.5 million immediate family members of people receiving legalization under IRCA, building on a more-limited exercise of discretion in 1987 by Edwin Meese. Three years after Meese's original executive action, Congress codified the action in the Immigration Act of 1990.
In 1997, President Clinton provided DED status to some 40,000 Haitians previously paroled into the U.S.. At the end of the 105th Congress a year later, legislation passed allowing these Haitians to permanently adjust their status.
The record is clear: Presidents of both parties have used discretionary powers on multiple occasions to protect various groups from deportation for an enormously wide variety of reasons. Except for temporary conditions, Congress acted later—often years later—to ratify the president's decisions.
Looking back now, would we reverse any of these executive actions? Should we have returned Eastern Europeans to behind the Iron Curtain, Cambodians to the killing fields, Ethiopians to a brutal civil war, Iranians to the arms of the ayatollah, or Chinese students to face the tanks in Tiananmen Square? Would we be better off without the Cubans and Haitians who revitalized South Florida over the past 40 years? Were we wrong to prevent the separation of 1.5 million people from family members getting right with the law under IRCA's legalization?
Many of these actions were controversial when first announced. But Congress later affirmed virtually all of them—without explicitly reversing any of them—suggesting that eventually they were widely accepted. Decades from now, people looking back on President Obama's imminent announcement of broad-scale executive action will see that he prevented the separation of families, began fixing a badly broken immigration system, and improved wages, housing, and education for those receiving legal status, thus immeasurably enriching the economy. They'll likely see that Congress later ratified his actions, as happened so often before.
And, they'll wonder: what was all the fuss about?
Charles Kamasaki is senior cabinet adviser at the National Council of La Raza. A slightly longer version of this piece, complete with citations, is available on the NCLR website.