Sen. Al Franken, D-Minn., took to the airwaves to defend the Deferred Action for Childhood Arrivals, or DACA, policy the Obama administration put in place in 2012 after Congress failed to pass immigration legislation.
DACA defers the deportation of certain illegal immigrants who initially entered the United States as children. President Trump has said he would rescind it and that former President Barack Obama exceeded his authority by signing it.
Not so, Franken said.
"The executive order that President Obama gave on this was actually lawful," Franken said in a Sept. 5 interview on MSNBC. "President Reagan did a similar thing. George H.W. Bush did a similar order."
We decided to look more closely at whether Reagan and the elder Bush took actions similar to DACA.
Because Reagan and Bush are each credited with issuing multiple executive grants of immigration relief, we asked Franken’s staff to clarify which Reagan and Bush actions the senator had in mind.
Franken was referring to a 1987 action Reagan took on the heels of the Immigration Reform and Control Act. That sweeping 1986 immigration overhaul granted legal status for many, but not all, illegal immigrants.
Crucially, the law did not automatically apply to the spouses or children of newly-legalized immigrants, which meant families across the country were vulnerable to being split based on differences in legal status.
After Congress failed to pass a bill to reduce family disruptions, Reagan drew upon his executive authority to do so on his own. His 1987 executive action to legalize the status of minor children of parents granted amnesty under the immigration overhaul affected an estimated 100,000 families. (Note that spouses and children of couples where one parent, but not both, qualified for amnesty were not included in Reagan's policy.)
Reagan’s 1987 action parallels Obama’s DACA in some key ways, but differs in others.
Both are examples of a president wielding his power not to apply U.S. immigration law in cases where he deems this necessary or appropriate, said David Shirk, a fellow at the Woodrow Wilson International Center for Scholars.
Using executive authority this way is not so unusual among modern presidents. As Kenneth R. Mayer, a political scientist at the University of Wisconsin-Madison, told us in a previous fact-check, "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."
An important distinction, however, is that while DACA provided a temporary reprieve from deportation, it fell short of giving legal status to eligible immigrants, as Reagan’s had done, Shirk said.
"(Obama’s action) allowed undocumented immigrant children to come out of the shadows, but only as long as the executive branch adhered to the policy of DACA," he said. "Reagan's order gave undocumented immigrant children full legal status, with the possibility of permanent residency and eventual consideration for citizenship."
The two policies also differ in terms of the number of people affected. Whereas Reagan’s action affected an estimated 100,000 families, nearly 800,000 undocumented immigrants have taken advantage of DACA.
As we’ve noted previously, critics have argued that Obama’s action is different because he did it in the face of opposition from Congress (at least from the House), whereas Reagan’s policy (and Bush’s, for that matter) was undertaken to fix "loose ends" of the 1986 immigration law.
Franken’s reference to the elder Bush concerned his 1990 executive action, which like Reagan’s before him, sought to smooth off some of the rough edges of the immigration overhaul.
To prevent families from being split up, Bush’s policy effectively forestalled the deportation of spouses and children of a person who gained legal status as a result of the 1986 law, a broader group than those affected by Reagan's action.
Like DACA (and Reagan’s 1987 action), Bush’s action is another example of a president relying on executive authority to selectively apply U.S. immigration law so as not to deport certain undocumented immigrants.
Similar to DACA, Bush’s action did not confer legal status. Rather, it granted deportation deferment that could be renewed periodically. Both permitted affected immigrants to receive work permits.
There’s disagreement over how many undocumented immigrants were covered by Bush’s action. It was initially estimated to apply to up to 1.5 million, though Mark Krikorian, executive director of the Center for Immigration Studies, a group that favors tighter immigration policies, has written that as few as 140,000 took advantage of it. So that’s either substantially larger or substantially smaller than the nearly 800,000 DACA recipients.
Franken said, "President Reagan did a similar thing. George H.W. Bush did a similar order" as Obama’s Deferred Action for Childhood Arrivals, or DACA.
There are differences in the substance and circumstances of DACA, on the one hand, and the Reagan and Bush actions, on the other. But they are similar in their broad strokes and even share some specific features.
Most significantly, all three are examples of presidents relying on executive authority to selectively apply U.S. immigration law to lift — or lift the risk of — deportation for large numbers of undocumented immigrants.
We rate this Mostly True.