President Obama's supporters are justifying his coming executive action on immigration by turning to an unlikely argument: Bush did it.
No, not that Bush.
They're pointing to a program started by President Reagan, and expanded by President George H. W. Bush, that ultimately targeted over a third of the country's unauthorized immigrants for protection from deportation. It was called the Family Fairness Program and it's probably the closest analogue in recent presidential history to what Obama is considering now. Here's how it worked.
What was the Family Fairness program?
After the Immigration Reform and Control Act (IRCA) passed in 1986, about 2.7 million previously-unauthorized immigrants were able to apply for legal status, which they could ultimately turn into green cards and eventual citizenship. But there were strict requirements about who could get legalized: most importantly, immigrants had to have been in the US since 1982. And that meant some members of families were eligible while others weren't. If an immigrant who was eligible for legalization under IRCA had a spouse or a child who wasn't eligible, the spouse or child was out of luck.
This struck many — including Reagan — as unfair. The year after IRCA passed, President Reagan took executive action to keep some of those spouses and kids from getting deported. Reagan said that children who had two parents who were legalizing, or were being raised by a single parent who was legalizing, could get something called "extended voluntary departure" — basically a grant of protection from deportation with a work permit, similar to what the Deferred Action For Childhood Arrivals program (DACA, protecting "DREAMers") uses today. And in particular cases, spouses of IRCA beneficiaries could apply, too.
In 1990, President George H.W. Bush expanded the program, to allow any child or spouse of someone who was getting legalized through IRCA to apply for extended voluntary departure. That expansion made it much broader than the original program.
Bush gave the program a new name: Family Fairness. That's the action that is most comparable to Obama's actions now.
What was the justification for Bush's action?
George H.W. Bush's executive action had a similar rationale to Obama's: once adults get citizenship or citizens become adults, they're able to apply for their family members to immigrate legally to the US. So in both cases, executive action covers people who are going to be eligible for legal status eventually — but are currently at risk of being deported. For Bush, it was the spouses and children of amnesty recipients who'd gotten legal status, but not citizenship; for Obama, it's the parents of native-born US citizens who just can't sponsor their parents until they turn 21.
If Obama, as expected, focuses the new deferred action program on parents of US citizens or green card holders, it will be a mirror image of the Bush program: Bush protected children on behalf of their parents, whereas Obama will protect parents on behalf of their children.
Did Bush protect as many immigrants as Obama's going to?
This is tricky — partly because no one knows how many people will actually apply for the program Obama's set to create. But in terms of how many people are eligible, Bush's action targeted fewer people than Obama's — but a comparable share of the immigrant population.
The commissioner of the Immigration and Naturalization Service (the agency that dealt with immigration before 9/11, when it was split into three agencies under the Department of Homeland Security) estimated that about 1.5 million immigrants would be eligible to apply for relief from deportation under the expanded Family Fairness initiative.
That's much smaller than the 4 million people who are estimated to benefit from Obama's latest round of executive action. But there were fewer unauthorized immigrants, period, in 1990 — in part because about 3 million immigrants had been legalized through the Reagan amnesty just a few years earlier.
In 1990, the total unauthorized population of the US was about 3.5 million. So Bush's executive action protected about 40 percent of America's unauthorized immigrants at the time. That's roughly comparable to the action Obama is expected to take, covering 4 million of the nation's 11 million unauthorized immigrants (although including the people who've already been granted deferred action through the DACA program, Obama's actions ultimately protect a slightly higher 5 million).
It's worth noting unauthorized immigrants in 1990 weren't at as much risk of deportation. Only 30,000 immigrants were formally removed from the US in 1990 — less than one percent of the unauthorized population. And it's reasonable to assume that few of those were children.
During the first several years of the Obama administration, 400,000 unauthorized immigrants were removed every year — about 3.6 percent of the total unauthorized population. That included tens of thousands of parents of US citizens — the very group being protected by Obama's upcoming action. In 2013, about 72,000 parents of US citizens were deported — a slight decrease from the year before.
Was Congress on board?
Some conservatives, including Gabriel Malor of the Federalist, have said that Congress just made a mistake in 1986 when it passed the Reagan immigration bill. They didn't mean to leave out spouses and children, they just "had not considered and not included" them. So Reagan, and Bush after him, were just dealing with unintended consequences of a bill Congress had recently passed — making it different from Obama's actions today.
That's in line with how Sen. Chuck Schumer, a Democrat, characterized the law in 1987; the New York Times (as highlighted by Malor), paraphrasing Schumer, said that Congress kept the law "deliberately vague." But when the Senate Judiciary Committee sent the Reagan bill to the full Senate, it wasn't vague at all — despite what Schumer claimed later. It made it clear that it didn't intend to legalize the families of IRCA beneficiaries. Here's what the Judiciary Committee report said (as quoted, in full, in a court case from 1988, in which an IRCA applicant's spouse was denied relief):
It is the intent of the Committee that the families of legalized aliens will obtain no special petitioning right by virtue of the legalization. They will be required to "wait in line" in the same manner as immediate family members of other new resident aliens.
The executive actions that Reagan and Bush took didn't let anyone jump the line — they just allowed them to stay in the US until they could actually get in line for legal status. But it's worth noting that the people Reagan and Bush protected had specifically been left out.
In July 1989, the Senate passed an Immigration Act which would have given legal status to the children and spouses of IRCA beneficiaries (while doing a bunch of other things as well). But the bill languished in the House for several months.
When President Bush decided to expand the Family Fairness program to its 1.5-million immigrant size in February 1990, he was acting to protect people who would have gotten legal status in a bill that had passed the Senate but not the House.
And both chambers, at the time, were controlled by the president's opposing party: the Democrats.
Technically, that's the situation Obama is in right now — he's giving protections from deportation to a fraction of the people who could have gotten legalized under the bipartisan immigration bill that passed the Senate last year. That bill never got taken up in the House, which, like the House in 1990, is controlled by the opposite party to the White House.
The difference is that Bush took action while there was still time left for the House to take up the bill — and the House wasn't wildly opposed to doing so. This time around, there's little hope that House Republicans will pass an immigration bill, much less one that can be reconciled with the Senate, and Republicans in both chambers are reacting to Obama's proposed action with fury.
How did Congress respond to Bush's executive action?
As it turned out, Bush's move to expand the Family Fairness program helped spur the House to take action on its stalled immigration bill. The month after Bush's announcement, a group of members of Congress introduced a bill that would accomplish legislatively what Bush had done on his own: prevent the deportation of family members of IRCA-legalized immigrants. Introducing the bill, Democrat Edward Roybal didn't even mention Bush's recent expansion of the program — Roybal simply mentioned that current "INS policy" could be reversed, and needed legislation to make it permanent.
By October 1990, the House and Senate had put together a final, combined Immigration Act. The bill was pretty comprehensive in scope; among other things, it granted legal status to those family members — and actually went a little further than Bush did, granting legal status to children who were as old as 20.
This is clearly what Obama hopes will happen after his executive action: a broad, comprehensive immigration bill. Exactly one Republican in Congress — Senator Jeff Flake of Arizona — has said he agrees.
But most Republicans have been saying that executive action by Obama instead makes them far less inclined to pass comprehensive reform. Instead, many in the party have floated suing Obama, shutting down the government,impeaching the president, and punishing Democrats by taking massive executive actions next time they control the White House.
That's the big difference between Bush's and Obama's moves: not what they did, but how Congress felt about what they did, and what the opposition party did in response.
UPDATE: This article has been updated to include a 1987 quote from Sen. Chuck Schumer about the 1986 bill; thanks to Gabriel Malor for the tip.
CORRECTION: The article originally attributed the name "Family Fairness" to Reagan; the name came from Bush.