President Barack Obama, with Vice President Joe Biden, delivers remarks on immigration, in the East Room of the White House, Oct. 24, 2013.

 (Official White House Photo by Pete Souza)

On 16 February 2015, U. S. District Court Judge Andrew Hanen issued an injunction blocking portions of President Barack Obama’s “deferred action” program, which had protected up to 5 million undocumented immigrants from deportation. In a series of executive orders issued in November 2014, the President had reached well beyond this protective shield, promising illegal immigrants work permits, Social Security eligibility, and access to benefits such as drivers’ licenses and certain welfare programs.

Although the District Court decision rested ultimately on what Hanen ruled was a violation of the Administration Procedures Act requiring public notices and comment before implementation of policy, Hanen’s extensive opinion, and the suits brought against the President by 26 states, constitute a legal expression of the argument made by Republicans that the President is acting unconstitutionally.

Viewed logically, he did, since it is the responsibility of the executive branch to carry out the law Congress has enacted, not “creating [law] from scratch,” as Judge Hanen writes. Hanen concluded that “the Government has decided it will not enforce [certain] immigration laws,” and, “instead establishes a pathway for non-compliance,” in effect, legislating.

Viewed legally, Obama perhaps did not overstep, since leading constitutional lawyers have defended the right of the executive branch to handle categories of illegal immigrants differently on the basis of “prosecutorial discretion.” Obama has defended his actions on exactly these grounds, arguing that it is “well within my authority and position of the executive branch’s prosecutorial discretion to execute this law.” Hanen clearly disagreed, concluding that “no statute gives the DHS [Department of Homeland Security] the discretion it is trying to exercise here.”

Viewed historically, Obama has abundant precedent and not just in the often-cited actions of recent, Republican Presidents like George Bush Sr. and Ronald Reagan. Executive Branch manipulation of deportation policy is old hat. Its twists and turns depending on parties and politics was dramatically revealed in the crisis of the Great Depression and in the transition between Herbert Hoover’s administration and that of Franklin Delano Roosevelt. Although this history occurred 80 years ago, the stage for the theater was the same as it is today: illegal Mexican immigration.

Hoover and his predecessors Calvin Coolidge and Warren G. Harding had not been eager to restrain Mexican immigration in the 1920s; in good economic times they had sided with southwestern commercial farming interests in their blatant pursuit of cheap labor. These Presidents were willing to overlook the very high rates of illegal Mexican entrance. Deportation rates were low, with Canadian deportees often more numerous than Mexicans. The onset of the depression and rising public anger about immigrant access to jobs and welfare forced Hoover to a different position. In his 1930 State of the Union Address he called for more vigorous deportation policies and in 1931, his Commissioner of Immigration, Harry E. Hull, suggested that his office had succeeded in achieving that objective, by expelling illegal immigrants by “trainloads and shiploads” (New York Times, 9 August 1931).

Deportations did rise radically from 1930 to 1933 but, curiously enough, almost entirely among Mexicans. While not increasing to the implausible levels commonly asserted in the scholarly literature (where historians and sociologists routinely claim more than 500,000 persons of Mexican origin were deported by federal authorities), Emily Merchant and I estimate that about twice as many Mexican immigrants were deported in this period than should have been expected from rates in other years.

The arrival of the New Deal administration abruptly changed this policy. Deportation rates fell, and those of Mexicans sharply, and New Deal officials—operating in an environment of greatly reduced legal and illegal immigration—quickly instituted more lenient policies. The view of New Deal Democrats resonates with that of Obama Democrats, and is similarly linked to the party’s ethnic constituencies. The 1934 report of the Immigration and Naturalization Service objected to laws that required “the deportation of many relatively harmless and deserving people,” and Secretary of Labor Perkins, under whom the Immigration and Naturalization Service operated, made it clear that she saw no reason to disturb well-settled, if technically illegal, immigrants. (Department of Labor, Annual Report of the Secretary of Labor, 1934 [Washington, 1935], 48, 52-53, and Annual Report of the Secretary of Labor, 1940 [Washington, 1940], 8). Reacting as well to trenchant criticism by lawyers of the legality of deportation procedures used by Hoover immigration officials, the administration revised these procedures. The new and lenient policy toward illegal immigrants revealed the Democratic Party’s deepening roots in the immigrant-origin groups upon which it had begun to rely for votes, just as Republican leniency in the 1920s revealed that party’s roots in the business community.

Only the Republican deportation program of the early 1930s, however, was an aggressive policy. In the Republican 1920s and the New Deal 1930s, Presidents instituted passive programs, simply allowing certain types of illegal entrants to avoid pursuit and deportation by federal agents. Most of the executive actions listed as precedent for Obama’s executive order have been of this variety, discriminating among undocumented immigrants, choosing which to seek aggressively to deport and which not. Very strong arguments for discretionary criteria could be made in such cases.

Obama’s program is distinct and pushes the envelope in the history of discretionary privilege, as Hanen argues. By stipulating that millions of undocumented immigrants will not only not be deported, but will be offered work permits and other privileges usually granted only to legal immigrants and citizens, the President has moved the Executive Branch’s privilege to a level rarely if ever seen before. If higher courts reverse Hanen’s decision, future Presidents might well have enormous and independent authority over immigration policy, for ill or for good.

Immigration advocates might think twice before clamoring for a broad right of prosecutorial discretion in the executive branch. Indeed, the same advocates who have applauded Obama’s executive order were on record mere moments ago attacking him relentlessly for his administration’s high rates of deportation. As Hoover’s aggressive program of the 1930s reveals, executive powers can be used ruthlessly to expel as well as warmly to embrace.