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On Nov. 20, 2014, President Barack Obama announced a landmark executive action on immigration.
The policy change would primarily affect more than 4 million immigrants who have lived illegally in the United States for more than five years but who have children who are citizens or have green cards. If the applicant can pass a background check and pay a fee, they could qualify for a work permit and avoid deportation for three years at a time. The program will open for applications in the spring.
In addition, Obama announced that he would expand by about 300,000 the number of people able to benefit from an existing order from 2012. That order deferred deportation for certain illegal immigrants who had initially entered the United States as children.
Obama took these actions despite longstanding concerns from critics that they were of questionable legality.
Obama sought to preempt these criticisms in his speech from the White House.
"The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every single Democratic president for the past half century," Obama said.
There is a robust debate under way about whether any president has the power under the Constitution to take the kind of action Obama just announced. We won’t referee that debate. Here, we’ll look at whether there is as much historical precedent as Obama claims and whether the examples are comparable.
Did each president over the past 50 years take executive action on immigration?
The answer appears to be yes. The White House and its allies have circulated a paper from the American Immigration Council titled, "Executive Grants of Temporary Immigration Relief, 1956-Present." The council is pro-immigration -- its motto is, "honoring our immigrant past; shaping our immigrant future" -- but experts we checked with didn’t quarrel with the raw data the council assembled in the paper.
In a multi-page table, the council cited 39 examples since 1956 in which a president "granted temporary immigration relief to one or more groups in need of assistance." Every president since (and including) Dwight D. Eisenhower, a Republican, took at least one such action. Readers can skim the full list here.
In a prior fact check, we addressed one of the more prominent examples -- in 1990, when President George H. W. Bush forestalled deportations for about 1.5 million illegal immigrants through executive action. It was a consequence of a 1986 immigration overhaul that granted legal status for many, but not all, illegal immigrants. Bush’s action was designed to prevent families from being split up based on differences in legal status. When Congress failed to change the law, Bush did it on his own in 1990.
Another prominent example: President Ronald Reagan legalized the status of some unauthorized children after passage of the 1986 law. This affected an estimated 100,000 families.
Obama’s claim is "true in the sense that presidents going back to at least Reagan have made unilateral adjustments to immigration law -- adding exemptions, extending protection to classes not covered by existing statutes such as children and spouses, making discretionary decisions about what constitutes ‘unlawful presence’ or what categories of people here illegally will be the focus of enforcement action," said Kenneth R. Mayer, a political scientist at the University of Wisconsin-Madison.
And Obama could have actually used a longer time frame, said Mae Ngai, a Columbia University professor of history and Asian-American studies. President Franklin D. Roosevelt, for example, adjusted the legal status of Europeans in the 1930s, she said.
Are the past examples equivalent to what Obama is doing?
The answer to this question is somewhat murkier. In general, experts said each case shares similarities in legal grounding but also had differences in scope and substance. Here are some of the differences:
• Size. At between 4 million and 5 million potential beneficiaries, Obama’s is easily the biggest such action ever taken by a president, at least in raw numbers.
Actions with a potential six-figure reach included reprieves for Cubans in the 1960s, Southeast Asians in the 1970s and Nicaraguans in the 1980s. But most were much smaller.
Even the second-largest legalization -- the Bush action -- may have affected far fewer than the 1.5 million figure that is usually attached to it, writes Mark Krikorian, executive director of the Center for Immigration Studies, a group that generally favors tighter immigration policies. He has written that the number taking advantage may have been as small as 140,000.
However, it’s worth noting that -- if you take the 1.5 million figure from George H.W. Bush’s action at face value -- both that action and Obama’s affected the same proportion of the undocumented population, about 40 percent.
• Scope. Many of the past presidential actions were targeted at specific populations that were experiencing humanitarian or political crises in their home country.
For instance, immigration orders affected 15,000 Ethiopians in the late 1970s and early 1980s; 2,227 Persian Gulf evacuees in the 1990s; and 10,000 Liberians under President George W. Bush. "The list reads like a study guide of post-war foreign crises," Krikorian writes.
Obama’s, by contrast, targets broad classes of people of any nationality. Broader, less country-specific actions are not unprecedented -- the Reagan and George H.W. Bush actions were roughly similar in design. But numerically, they account for a distinct minority of the 39 examples in the American Immigration Council’s report.
• What undocumented immigrants could receive. Krikorian notes that Obama has not just deferred deportation for certain undocumented immigrants but gone a step further, allowing them to receive work permits and other related benefits, such as Social Security numbers. Obama’s 2012 action, for illegal immigrants brought to the country as children, did the same.
There is at least one precedent for this: the George H.W. Bush action in 1990, which included the possibility of receiving work permits. Some of the other previous actions may have as well, but experts said allowing work permits are the exception rather than the rule.
• What was Congress’ role? Critics argue that Obama’s action is different because he did it in the face of opposition from Congress (at least from the House), whereas the Reagan and Bush orders were largely undertaken to fix "loose ends," as Krikorian characterizes them, from a specific immigration law.
The American Immigration Council cites several examples in which legislation was pending at the time the presidents took their action, including parole for orphans (under Eisenhower), Cubans fleeing Fidel Castro (presidents Richard Nixon, John F. Kennedy and Lyndon B. Johnson) and deferred action for battered immigrants (President Clinton).
Still, there’s broad agreement that the degree of tension between Congress and the president was unusually large under Obama.
Obama said, "the actions I’m taking" are "the kinds of actions taken by every single Republican president and every single Democratic president for the past half-century."
He has a point that every president since Eisenhower, Republican and Democratic alike, has taken executive action on immigration. However, Obama’s action can be viewed as more sweeping than any of those taken earlier.
The clearest parallel is Bush’s action in 1990: The percentage of the undocumented population potentially affected was similar, both actions were structured without regard to a specific nationality, and beneficiaries could qualify for a work permit.
Still, most of the actions taken by prior presidents were more limited in size, scope and benefits than the one in 1990. So, even if you accept that the 1990 action is a pretty close precedent, that’s a much more limited claim than the one Obama made.
In other words, it’s an exaggeration to say that Obama’s actions are "the kinds of actions taken" by every single president of the past half century. The statement is partially accurate but leaves out important details, so we rate it Half True.
Barack Obama, "Remarks by the President in Address to the Nation on Immigration," Nov. 20, 2014
American Immigration Council, "Executive Grants of Temporary Immigration Relief, 1956-Present," October 2014
Associated Press, "Obama spurns GOP with expansive immigration orders," Nov. 21, 2014
New York Times, "Obama’s Immigration Action Has Precedents, but May Set a New One," Nov. 20, 2014
Congressional Research Service, memorandum, July 13, 2012
Office of Legal Counsel, "The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others," Nov. 19, 2014
Mark Krikorian, "Obama’s Unprecedented Amnesty" (column in National Review), Nov. 18, 2014
Mark Krikorian, " Indiscrete Discretion," (column in National Review),
New York Times, "New Policy Aids Families of Aliens," March 5, 1990
Los Angeles Times, "Obama's potential executive order one of many on immigration," Nov. 18, 2014
PunditFact, "Rachel Maddow says Obama's proposed immigration move on 'same scale' as action by George H.W. Bush," Nov. 20, 2014
Email interview with Kevin R. Johnson, dean of the University of California-Davis law school, Nov. 21, 2014
Email interview with Kenneth R. Mayer, political scientist at the University of Wisconsin-Madison, Nov. 21, 2014
Email interview with Mae Ngai, Columbia University professor of history and Asian-American studies, Nov. 21, 2014
Email interview with Mark Krikorian, executive director of the Center for Immigration Studies, Nov. 21, 2014
Email interview with John Woolley, political scientist at the University of California-Santa Barbara, Nov. 21, 2014
Email interview with Stephen W. Yale-Loehr, adjunct law professor at Cornell University, Nov. 21, 2014
Email interview with Kermit Roosevelt, law professor at University of Pennsylvania, Nov. 21, 2014
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