On Nov. 20, President Obama announced an executive action on immigration to provide temporary protection (“deferred action”) from deportation and permission to work for some parents of United States citizens and legal permanent residents. The order also expands the existing “DACA” program benefiting the so-called DREAMers — high achieving young people brought to the United States as children. These two programs could affect up to 5 million unauthorized immigrants living in the United States.
The outcry from Republicans over Obama’s plans has been deafening. Congressional Republicans responded by holding a hearing to rail against the program. They’ve threatened a range of next moves, from defunding US Citizen and Immigration Services to impeachment. On Dec. 4, the House voted largely along party lines to pass a bill attempting to block the executive action.
And outside of Washington, D.C., the GOP reaction has been just as vitriolic. Seventeen Republican-led states have sued the federal government over the executive action, accusing the president of violating the Constitution and various administrative laws.
This complaint, however, is strong on sensationalism — and thin on law or fact. The suit, along with much of the recent Republican rhetoric, relies on the five key myths spelled out below.
Myth 1: There is no legal basis for the president’s actions.
Fact: Congress, through the Immigration and Nationality Act, has given the immigration agency authority to make choices about enforcement and has explicitly and frequently referred to the executive branch’s authority to grant deferred action. Immigration officials have relied on this authority for decades, and federal courts have consistently upheld this power. In 2012, the Supreme Court noted in Arizona v. United States that “a principle feature of the removal system is the broad discretion exercised by immigration officials. . . Federal officials as an initial matter must decide whether it makes sense to pursue removal at all. . . ”
More than 100 immigration law scholars have declared the legality of the president’s executive action under federal law and historical precedents. Along those lines, all legal challenges to the president’s 2010 deferred action program have failed.
Myth 2: The president is not enforcing immigration law.
Fact: The Obama administration deported a record number of people — 438,421 — in 2013. Immigrant activists call the president the “deporter-in-chief” for removing more than 2 million people during his time in office. This is more immigrants annually than any president before him. He can’t, however, deport 11.2 million unauthorized immigrants in one fell swoop. Therefore, using prosecutorial discretion to prioritize law enforcement is not just advisable, it’s unavoidable.
Myth 3: The president’s actions are unprecedented.
Fact: Every president since Eisenhower has taken executive action to grant relief to unauthorized immigrants. Of particular historic importance, Presidents Ronald Reagan and George H. W. Bush implemented the “Family Fairness” program, deferring deportations for about 40 percent of the unauthorized immigrant population at the time — about 1.5 million people. Their program benefited the noncitizen spouses and children of immigrants who qualified for legalization under the 1986 amnesty law. Although Congress had excluded the spouses and children of legalized immigrants through the amnesty benefits under the law, Reagan and Bush’s executive action prevented the deportation of these relatives and allowed some to work.
Myth 4: Recent immigrants are coming to the United States under the belief they will obtain lawful permanent status.
Fact: A statistically significant 2014 United Nations study shows that the recent surge in unaccompanied children at the US border was primarily due to increased violence in Central America.
Myth 5: There is a crisis at the border.
Fact: Actually, since President Obama took office, overall unauthorized immigration into the United States has stalled, despite the uptick this summer in children traveling to the country on their own. In fact, the total number of unauthorized immigrants has decreased about 1 million since 2007. Pew reports that this flat-lining in migration is in part due to tough border policies, as well as the recession.
Laila Hlass is a law professor at Boston University.