Case for DAPA was made by presidents Reagan and H.W. Bush

This week, the Supreme Court will decide whether to review U.S. v. Texas, the lawsuit that has blocked the Obama administration from offering temporary protection from deportation and the opportunity to apply for work authorization to approximately 4 million unauthorized immigrants who came to the country as children (Deferred Action for Childhood Arrivals, or DACA) or who are the parents of American citizens or lawful permanent residents (Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA).

This is a case that is deeply personal for me. The strongest historical precedent for this administration’s immigration actions comes from President Ronald Reagan and President George H.W. Bush. Their Family Fairness policy from 1987-1990 is a policy that my father, Rep. Edward Roybal (D-Calif.), strongly supported.  Under Family Fairness, the Immigration and Naturalization Service (INS) ultimately made up to 1.5 million unauthorized spouses and children of those who legalized under the Immigration Reform and Control Act (IRCA) eligible for temporary protection from deportation and work authorization. At the time, the Family Fairness policy was estimated to cover about 40 percent of the unauthorized population, roughly the same proportion covered by DAPA and expanded DACA today. 

{mosads}In ruling against expanded DACA and DAPA, the 5th Circuit Court of Appeals reached its decision in part by engaging in revisionist history. They claimed that the Family Fairness policy cannot count as precedent for expanded DACA or DAPA, because it was either blessed by IRCA before it, or was somehow legitimated by the subsequent passage of a new piece of legislation, the Immigration Act of 1990. But if that was the case, my father’s years of advocacy would have been unnecessary.  

In November 1986, President Reagan signed IRCA into law. The law offered a pathway to legal status to nearly 3 million unauthorized immigrants, but it intentionally offered no pathway for their spouses or children who could not independently meet its strict legalization criteria. As the Senate Judiciary Committee explained, “the families of legalized aliens… will be required to ‘wait in line’.”

Soon, it became clear to my father and others that this decision would result in the separation of families. My father introduced legislation in March 1987 to offer a path to permanent legal status for spouses and children of those legalizing their own status, and met with the INS Commissioner to urge executive action. But in October 1987, a companion measure by Sen. John Chafee (R-R.I.) failed on the Senate floor, after IRCA’s lead Senate sponsor said the proposal would “[destroy] the delicate balance of the recently passed immigration reform legislation.”

Soon after, the INS Commissioner issued a memorandum detailing guidelines to address “Family Fairness” concerns. Under this executive action, deportation would be deferred indefinitely for many children whose parents qualified for legalization under IRCA, and for certain spouses who could demonstrate compelling or humanitarian factors.  

Members of Congress, including my father, continued to work on the topic without legislative success. With no movement in Congress, in February 1990, the new INS Commissioner under President Bush issued a memorandum expanding the Family Fairness program to more widely offer protection from deportation and work authorization to these spouses and children. The Commissioner correctly observed at the time that enforcing immigration and border control laws need not be inconsistent with acting wisely and humanely. “To split families,” he said, “encourages further violations of the law as they reunite.” Just like DACA and DAPA today, the INS at the time created a new application form to be used by potential beneficiaries to guide the implementation of the directive.

Again, in the weeks following this expansion of Family Fairness, my father introduced a bill to codify that protection, recognizing that the Family Fairness policy was still just an executive action that could be rescinded by the INS. It was not until months later that Congress enacted the Immigration Act of 1990, including provisions that codified the Family Fairness policy. 

Describing the Family Fairness policy as merely filling a gap in the IRCA legalization scheme or as a short-term measure that acted as a bridge until further legislation could be enacted—as the lower court did—is nothing less than revisionist history. It was because of members of Congress like my father, and important members of the community that fought to preserve family unity, that the policy was adopted in the first place. And it was the adoption of the policy that helped to move Congress to enact a sensible and compassionate legislative response. 

Together with 217 of my colleagues in both the House of Representatives and the Senate, I filed a friend-of-the-court brief arguing that the strong legal basis for these policies flows from authority that has long been delegated by Congress and from decades-old regulations that went through the rulemaking process.   

It is my hope that once DAPA and expanded DACA are permitted to take effect and millions of Dreamers and parents of American citizens are permitted to come forward, pass background checks, and more fully participate in our communities, Congress will act consistent with the will of the American people and enact sensible immigration reform legislation. Doing so will honor the legacy and the principle of family unity my father, as well as President Reagan and the elder President Bush, championed.

Roybal-Allard represents California’s 40th Congressional District and has served in the House since 1993. She sits on the Appropriations Committee.

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