As part of its opposition to the Obama administration's efforts to make the immigration system more rational and humane, the Washington Post Editorial Board complained recently that the president's recent executive actions on immigration are unprecedented. To reach that conclusion they reject the obvious parallels to George H.W. Bush's 1990 Family Fairness policy -- which allowed up to 1.5 million spouses and children to receive temporary legal status -- by relying on an erroneous "fact check" by Glenn Kessler.
Despite the Board's heavy reliance on the question of historical precedent to justify its opposition to these new policies, it bears noting that the existence of comparable precedents has zero bearing on whether the president's actions are legally authorized. Its opposition, despite being cast in separation of powers terms, is therefore to the policies themselves rather than the legality of the actions.
But let's set the factual record straight: The Bush administration adopted the Family Fairness policy specifically because of the shortcomings of the Immigration Reform and Control Act of 1986 (IRCA). That bill legalized 3 million undocumented immigrants, but failed to cover many of their spouses and children, who did not meet the eligibility criteria. To ensure that families were able to stay together, the Immigration and Naturalization Service (the precursor to DHS) issued guidelines that granted extended voluntary departure (an administrative mechanism similar to today's deferred action), to the ineligible spouses and children of the newly legalized immigrants. Gene McNary, the INS Commissioner at the time and highest ranking immigration official, testified that the policy could cover as many as 1.5 million people, or 40 percent of the undocumented population.
The Obama administration, the American Immigration Council, the National Council of La Raza, and others have argued -- and research from the Congressional Research Service supports -- that Bush's policy was similar in scope to the DHS Directive issued by Secretary Jeh Johnson on November 20 of this year. That directive was estimated to cover a similar 40 percent of today's undocumented population, or nearly 4.4 million out of 11.3 million people.
Despite McNary's testimony and other available research and analysis of the numbers, the Post's Editorial Board rejected the 1.5 million estimate as "wildly inflated" and concluded that the "sweeping magnitude of Mr. Obama's order is unprecedented." (We won't quibble with the fact that this was not an order by President Obama, but a DHS Directive from Secretary Johnson.)
The Board, however, is simply wrong on the facts.
First, accurate estimates of the undocumented population during the Bush era were not nearly as comprehensive as the type of information that exists today. Accurately fact-checking the 1.5 million estimate must be done in the context of the time, and must also take into account the limited information available to the Bush administration. Simply put, the 1.5 million figure was a broad estimate based on the best available information at the time.
Second, it appears the Board failed to consider data that wasn't available in 1990, but is available now, in discrediting the 1.5 million estimate. Congress mandated under IRCA that a survey of the legalized population be conducted in an effort to make up for the shortcomings of the available research of the time. These surveys, conducted by INS in 1989 and the Department of Labor in 1992, provide information on the newly legalized population, as well as their undocumented spouses and children. Even a quick review of that data indicates that a million people could have been covered by the Family Fairness policy rather than the 100,000 estimate that Kessler and the Board latched on.
Kessler has subsequently acknowledged that estimates were available in 1990 that over a million people could be eligible. But -- in at least the third update to his "fact check" -- he attempts to discredit those newly uncovered estimates by relying on 24-year-old memories from former INS officials, rather than the printed records from the time. Commissioner McNary has now apparently told Kessler that his 1990 congressional testimony under oath that up to 1.5 million people might be eligible was wrong. This, despite acknowledging that he doesn't remember testifying on this question at all. Another official, Thomas Andreotta, told Kessler to discount his earlier estimate by arguing that "estimates were routinely inflated [in] order to get the resources necessary." Like McNary, he admitted to Kessler that he "did not have a specific recollection of the memo" in question. In other words, these officials don't remember the statements they made in contemporaneous records -- in one case under oath -- but feel confident 24 years later that those estimates were wrong.
Beyond the basic facts, the Washington Post Editorial Board misses an obvious point: Using information available at the time, the Bush administration believed that 1.5 million people could benefit from this program. Even if the administration had been wrong about the number, the highest ranking immigration official at the time was operating based on that assumption. Senator Chafee's (R-RI) office re-iterated that up to 1.5 million would be covered under the family fairness policy - a number accepted and echoed by restrictionist groups like Center for Immigration Studies. Additionally, INS internal estimates show that "potentially millions" would apply for relief under this policy.
The Washington Post Editorial Board also asserts that the Bush policy was different in kind from the current DHS directive because Bush's was aligned with congressional intent while "Obama's move flies in the face of congressional intent." This charge is again divorced from the underlying facts: the Bush policy, just as President Reagan's earlier policy to cover certain spouses of people legalized under IRCA, protected individuals that Congress had explicitly declined to cover in 1986, and then voted against including once again in 1987. IRCA's primary drafters from both parties, and the Reagan and Bush administrations, all expressed that Congress left these children and spouses out. Conversely, Obama's executive action is completely in line with the Senate bill that passed in 2013 - the same bill that the House has refused to vote on.
As in 1990, the November 20th DHS Directive on Deferred Action is estimated to cover roughly 40 percent of today's undocumented population. As in 1990, today's deferred action policy is designed to advance a compelling national interest in keeping families together. And, as in 1990, the Obama Administration's directives are unequivocally within the current legal authority of the executive branch.
In February of 1990, the Washington Post Editorial Board called Family Fairness "sensible, humane, and fair." They should do the same today.
Marshall Fitz is Vice President for Immigration Policy at the Center for American Progress. He thanks Silva Mathema, Patrick Oakford, and Philip E. Wolgin for their help.