A key precedent for executive action on immigration that everyone has missed

On Thursday evening, President Obama introduced his executive orders on immigration policy. The orders shielded from deportation nearly 5 million undocumented immigrants currently in the United States. These immigrants, who comprise about 40 percent of an estimated 11 million undocumented residents, will be able to work legally and live openly in this country without fear of being expelled. He refocused enforcement priorities on those who came to the U.S. after Jan. 1, 2014, convicted criminals, suspected terrorists and potential national security threats. The president’s orders also make it easier for foreign workers with high-tech skills to enter and stay in the United States.

{mosads}The orders do not give reform advocates all they might have hoped for, but still represent the most significant transformation of immigration policy in many decades. Republicans, who have blocked immigration reform throughout Obama’s tenure, have denounced both the substance of the new policy and its implementation through executive action. They have charged that the president has exceeded his authority as chief executive. Republican Sen. Rand Paul of Kentucky, a possible candidate for the 2016 presidential nomination, said flatly, “But the president can’t do this. This goes against the fundamental separation of powers that we have in our country.”

Leaving aside the pros and cons of the executive orders, this article will address the issue of executive authority. It will show that commentators have missed the most important precedent for sweeping executive action on immigration. This was an initiative taken by a Republican president that well exceeded in scope and effect the executive orders that Obama has issued.

Republican President Herbert Hoover in 1930 issued the most far-reaching executive decision in the history of American immigration policy. Ostensibly to keep American jobs for Americans during the Great Depression, he unilaterally decided that his administration would issue immigration visas only to persons with the means to support themselves independently in the United States.

The president did not draft a formal executive order but announced the new policy in a press release. The results were dramatic. The new executive policy did not ameliorate the Depression, but it slashed immigration from all foreign lands by nearly 90 percent. In 1931, for the first time in the country’s history, the outflow of residents leaving for other lands exceeded the inflow of immigrants.

Unlike Obama’s executive order, Hoover’s initiative contradicted immigration law directly. Existing law only barred admission to persons likely to become a public charge, which could be circumvented in many ways other than the possession of independent means, such as through demonstrating the skills needed to work or through bonds pledging support from friends, family or relatives residing in America.

Hoover’s policy change persisted until abrogated in 1936 by Democratic President Franklin Roosevelt, largely in response to the need to find safe havens for persecuted German Jews. Roosevelt then acted unilaterally to allow Jewish refugees holding temporary visitor’s visas to stay in the United States indefinitely. Today, an estimated 40 percent of the undocumented immigrants have overstayed their visas, rather than having crossed illegally into this country.

Other recent precedents have been part of the contemporary debate. In 1985, during the administration of Republican President Ronald Reagan, Congress passed a reform bill that shielded some 3 million immigrants from deportation. The bill, however, did not include family members and Reagan responded to this flaw by halting the deportation of their children without waiting for Congress to act. In fact, Congress failed to act during his tenure and Reagan’s Republican successor, George H. W. Bush, acted unilaterally to protect families from breakup through deportation. Democratic President Bill Clinton and Republican President George W. Bush also used presidential powers to make policy on immigration.

In none of these many examples did the opposition party raise sweeping objections comparable to those of today’s Republicans in challenging the authority of the president to act broadly in interpreting, implementing and administering immigration policy.

Republicans’ procedural and constitutional objections to Obama’s executive order are a smokescreen for opposition to the substance of the policy. Republicans have also made clear their intent to paste every possible defeat on President Obama. Regardless of whether you agree or disagree with Obama’s immigration reform, precedent establishes that he is well within the ambit of presidential authority, especially when Hoover’s executive action is added to the debate.

Lichtman is distinguished professor of history at American University in Washington.