When Ronald Reagan signed the Immigration Reform and Control Act in November 1986, he called it “the product of one of the longest and most difficult legislative undertakings in the last three Congresses.” That was true, as the bill had a tortuous four-year path through Congress. He also said the story began in 1981, when “this administration asked the Congress to pass a comprehensive legislative package.”^{Footnote 1} That was also true, as far as it went. But Congress would almost certainly have taken up immigration reform anyway, given the pending release of a report commissioned in Jimmy Carter’s last year as president. To get out in front of the issue, Reagan had established an immigration task force, submitted reform proposals, and called on Congress to address them. But Reagan never led aggressively and seemed to lose interest, so that scholars generally downplay the administration’s role in the legislative reform.^{Footnote 2} With a focus on the passage of the legislation through Congress, that makes sense.

But there is more to learn from the Reagan administration’s approach to immigration reform during the 1980s. That approach shifted in significant ways between 1981 and 1986. It began by taking the initiative and devising recommendations, became less and less enamored with immigration reform as the years passed, and ended up “punting” (as one adviser put it) by neither opposing nor strongly supporting the bill. But the Reagan team did not ignore the legislation. While it accepted, somewhat passively, the immigration bills as they meandered through Congress, it also used the final bill as a vehicle to help firm up larger administration priorities—such as limited federal financial exposure, enhanced federalism, and the autonomy of the executive branch—through innovative use of the signing statement. The trajectory from presidential task force to presidential signing statement on immigration reveals the challenges faced by the Reagan team when engaging policy issues outside its core priorities. It also reveals the development of a tactic to help maneuver through those challenges, as immigration reform became less about immigration than about preserving key elements of the administration’s larger agenda.

When Ronald Reagan took office in January 1981 he anticipated receiving the report of the Select Commission on Immigration and Refugee Policy within months. Immigration had emerged as a national issue in the decade following the 1965 immigration reforms. In concert with Lyndon Johnson’s civil rights push, Congress replaced the immigration system that gave a disproportionate number of slots to northern and western Europeans with one that set equal quotas among nations of origin. It also established family reunification preferences as exceptions to hemispheric immigration limits—placing numerical limits, for the first time, on immigration from the Western hemisphere. The 1965 legislation also included refugees within immigration limits.^{Footnote 3} Significantly, the combination of hemispheric limits (120,000 for the Western Hemisphere—a 40 percent reduction from pre-1965 immigration numbers) and country limits (20,000) had different implications for different global regions. Opportunities for migration from areas such as Asia and Africa increased significantly, with Asian migrants outnumbering Europeans by 1971. The same stipulations greatly restricted migration from Mexico and the Caribbean. As historian Mae Ngai notes, the legislation essentially “recast Mexican migration as ‘illegal,’” given that more than 200,000 Mexicans had been migrating to the United States as workers or permanent residents during the early 1960s.^{Footnote 4} Significant numbers of refugees also sought entrance, most notably from the turmoil in Indochina.

Public opinion grew increasingly wary of the number of newcomers, forcing Congress and presidents to wrestle with solutions.^{Footnote 5} Intraparty divisions and an upcoming presidential campaign led congressional leaders in 1978 to request that President Carter appoint a commission to study the problem. The Select Commission on Immigration and Refugee Policy (SCIRP) formed in July 1979 and concluded its work in February 1981. In the meantime, Congress separated refugees from other immigration issues with the Refugee Act of 1980. SCIRP, therefore, focused most of its work on documented and undocumented immigration. Its report insisted that the “back door” of illegal immigration be closed before effective reform of the “front door” of legal immigration could be enacted—an important decoupling of policies based on immigration status. Key recommendations for closing the back door included economic sanctions on employers who hired undocumented workers—long supported by labor groups but opposed by Latino organizations and agricultural interests. The committee also unanimously recommended a path to legalization for undocumented immigrants already in the United States.^{Footnote 6}

The SCIRP recommendations figured prominently in the immigration policy debates of the 1980s, but at their release in early 1981 it was unclear what fate would befall the report of a commission created by the Democrat Carter in what was being hailed as a new era in American governance. Of course, the new Reagan administration could not ignore the Select Commission’s report, particularly as Congress stood poised to open hearings on immigration reform in the wake of its release. But Reagan advisers intentionally sought to diffuse any sense of inevitability for the recommendations. They suggested that the vice president, rather than the president, receive the final SCIRP report and not comment on the recommendations other than to recognize the importance of the issue and to note that the administration would undertake its own comprehensive review of immigration and refugee policy. Advisers reasoned that “reducing press coverage and distancing the President from this Select Commission” had its advantages.^{Footnote 7} The popular press noted the challenges the SCIRP report might face with the new administration. For example, in the last few minutes of an early March interview, Walter Cronkite referenced the Select Commission and asked Reagan whether he might support some form of national identification to help stem the tide of illegal immigration. Reagan redirected the question by mentioning a program popular among some border-state governors and Mexican officials to legalize regular border crossings for employment—something the Select Committee intentionally downplayed.^{Footnote 8} The Washington Post opined that the “swarm of loose papers you saw blowing around Lafayette Square the other day might have been the final report” of the Select Commission. The new president, the Post noted, “in a truly flabbergasting way . . . brushed past its recommendations.”^{Footnote 9}

Reagan seemed to confirm the accusation when he appointed his own cabinet-level task force to review the Select Commission recommendations and formulate its own. Chaired by Attorney General William French Smith, the task force included the secretaries of relevant Cabinet departments, the directors of the Office of Management and Budget and FEMA, and Frank Hodsoll representing the White House and coordinating a smaller White House working group. Through the late spring and summer, its immanent report and the administration’s developing legislative proposals for immigration gradually became a story, as news reports and analysis portrayed the administration in the driver’s seat and Congress as responding to its initiative on immigration reform.^{Footnote 10}

In the context of the administration’s success with its economic package, this characterization made sense. Reagan had introduced his tax and budget reforms to Congress mere weeks after taking office. By the time he signed the Economic Recovery and Tax Act and the Omnibus Budget Reconciliation Act on August 13, 1981, he had gotten most of what he wanted in economic policy. Both Washington insiders and the press proclaimed Reagan a political master. Many had underestimated the former actor, but commentary from the summer and fall of 1981 suggested that few wished to do so again.^{Footnote 11} Reagan’s political skill combined with the trajectory of presidential power relative to Congress to raise the expectation that the president would drive the legislative agenda. The Reagan team seems to have agreed. In their blueprint for the early administration, Reagan aides insisted that “the 1980 presidential election should be viewed as an axial event demarking a major political opportunity for redrafting the policy agenda.”^{Footnote 12} In their zeal to reduce the size of the federal government, the president and his advisers saw the presidency as “a potent instrument for imposing change wholesale” on both policy and politics.^{Footnote 13} The image of the policymaking presidency, developed especially through the New Deal and Great Society, continued strong in the early years of the Reagan Revolution. The goals for legislation and the philosophy behind it were different under Reagan, but Americans still expected the president to develop, propose, and shepherd through Congress new bills to address the nation’s problems. The Reagan team gave every appearance of fulfilling those expectations not only for its economic priorities but for immigration reform as well.

If this concept of presidential initiative harked back to his Democratic predecessors, so did Reagan’s use of a task force in the formulation of the administration’s policy approach, even if the constitution and operations of presidential task forces have varied. John F. Kennedy, for example, appointed volunteer outside experts to more than two dozen high-profile task forces and charged them with devising policy options on specific issues. This approach garnered much public attention and anticipation as well as general confidence in the expert, nonpartisan deliberations. However, problems ensued when task force reports called for actions at odds with administration priorities or with unacceptably high price tags. Chastened and seeking more control of policy proposals before they went public, Kennedy reverted to having agency proposals percolate up through the bureaucracy, which solved the problem of high price tags and unanticipated recommendations but tended to weed out bold initiatives and new ideas. Lyndon Johnson learned important lessons as Kennedy’s vice president. Johnson’s task forces—he had well over one hundred—were smaller than the Kennedy blue-ribbon versions, normally had a White House liaison and an executive secretary from within the administration (usually from the Bureau of the Budget to keep tabs on costs), and established links to professional and academic circles. They were also secret, with the exception of occasional leaked tidbits of information that could be helpful in a campaign, and so garnered little publicity. This approach succeeded in short-circuiting the normal bureaucratic maze, and from hence he launched the Great Society legislative avalanche.^{Footnote 14} But it failed to garner the administration much credit for working on a policy issue, and did not buy time to devise administration proposals in an effort to beat Congress to the punch—something the Reagan team sought to accomplish on immigration reform.

In its details, the Reagan task force learned from both models. Its members came from within the administration, and thus was not a blue-ribbon commission out of the president’s control and relatively immune to politics like Kennedy’s early task forces. It was not secret, as Johnson’s were, and so helped the administration set its own timeline and grasp the initiative publicly. It paid careful attention to the complex politics of immigration reform. Hodsoll, as administrator, clearly recognized the potential for immigration to divide Republicans, and the White House, into at least three camps—law-and-order types determined to control the border, libertarians wary of any enhanced governmental authority, and agricultural interests seeking a reliable and controllable workforce. The task force in general paid careful attention to the politics of the issue, including congressional leanings, interest-group opinion, and regional priorities.^{Footnote 15} And Hodsoll quickly came to appreciate the depth of divisions within the White House itself. By April two opposing camps had emerged on issues related to illegal immigration. One camp preferred a large temporary worker program to address the incentives for undocumented immigration, with no employer sanctions or legalization program. The other preferred employer sanctions using an enhanced Social Security card, a modest amnesty program for longtime undocumented residents, and a trial temporary worker program.^{Footnote 16} From April through July, Martin Anderson, Reagan’s assistant for policy development, lobbied hard against both employer sanctions and a national identification card, while Hodsoll led the defense of both. Tellingly, both Hodsoll and Anderson appealed to Reagan’s past record and general conservative principles in making their case. The president had said little directly about immigration, either in 1981 or throughout his career, but his small-government priorities and his celebration of America as a land of opportunity lent credibility to both arguments.^{Footnote 17}

Despite the political pitfalls, Reagan’s advisers determined to pursue immigration reform, and some even saw it as a second-wave domestic priority after the economic package. Edwin Meese and James Baker, in reporting to Reagan on the progress of the task force in June 1981, reinforced the difficult politics of immigration reform. The issue, they noted, was a “no win” situation. On one hand, it would be virtually impossible to stop illegal entry (they repeated Hodsoll’s statement that “nothing short of a Berlin Wall could keep illegals out”). Furthermore, any policies enacted would “be criticized from one quarter or another.” Nonetheless, “while we may not stop illegal immigration, we need a policy which deals with the realities of Mexico, and politically permits assimilation over time of new immigrants within a legal framework more respected than breached.”^{Footnote 18} They went in determined, and with eyes open.

The final task force report, presented to Reagan at the end of June, recommended employer sanctions with an enhanced Social Security card serving as proof of eligibility to work, a legalization provision for immigrants already in the United States, and a temporary worker program. Internal division over a new national identification card led Reagan to approve the use of existing documents for verification. So the task force and Reagan adopted the basic program of the Select Commission—sanctions and legalization—plus temporary workers, minus one controversial enforcement tool.^{Footnote 19} Significantly, this left the administration without an especially Reaganesque, or even identifiably Republican, proposal, making it difficult for Reagan to play his most effective role.

Immigration reform confounded Reagan’s particular strengths as a leader. He had made his political career criticizing the excesses of midcentury liberalism, and the accumulating challenges of the 1970s and the Carter administration provided Reagan with a striking entrée into national political leadership. Reagan blamed liberals since the 1960s for failed economic policies, weak foreign policies, and defeatist attitudes, and offered a public philosophy that directly contradicted theirs. The great successes for Reagan came in areas where he could reject the liberal trends—real or perceived—of the previous generation and outline a change of course to get the country back on track. In the words of political scientist Steven Skowronek, Reagan’s “most potent political resource was his authority to repudiate,” especially early in his first term on his core priorities of lower taxes, less regulation, and reduced government expenditures.^{Footnote 20}

Immigration reform was different. Reagan’s own personal views, the recommendations of his task force, the legislation proposed by his administration, and the policy preferences of some of his advisers provided little room for repudiation. As they waded deeper into the policy nuances of immigration reform, and as the dramatic legislative victories of 1981 receded further into the past, administration officials lost the approach that had proved so formidable with budgets and taxes. Reagan’s use of a task force to enter into the discussion, and that task force’s affirmation of most of what the Democrat-established SCIRP called for, made it difficult to employ a repudiation of the previous regime’s approach, even as it put Reagan firmly behind immigration reform—the goal of which was not to reverse or replace the Great Society’s 1965 immigration law, but to tweak it to address some of its identifiable flaws. Many people on both sides of the aisle agreed on the basic framework for that project. There was nothing much to repudiate.

This would become increasingly significant as the legislation moved through Congress. The bills introduced in the Senate by Alan Simpson (R-Wyo.) and in the House by Romano Mazzoli (D-Ky.) were similar enough to its own recommendations that the administration fell in behind Simpson-Mazzoli as the best path to immigration reform. Thus began a laborious four-year path through Congress. In both the 97^th (1981–82) and 98^th (1983–84) congresses, immigration reform passed the Senate but died either in the House or in conference committee. Each incarnation brought new amendments or provisions to consider. The story of the path of immigration reform legislation through Congress has been told elsewhere.^{Footnote 21} As the bills moved through the legislature, the Reagan administration focused on a cluster of key concerns—not the big, controversial issues of employer sanctions or amnesty for the undocumented, but details within those provisions that reflected larger administration priorities. The differences are telling, in that they revolved around mechanisms rather than desired outcomes related to immigration.

The first concerned federal expenditures required by provisions in the bills. For example, to enforce sanctions the administration recommended the use of existing documents to identify those eligible to work, both to protect privacy and to hold down costs. Simpson-Mazzoli required the president to “implement such changes in or additions to the [existing documents] as may be necessary to establish a secure system to determine employment eligibility.”^{Footnote 22} Administration opposition to developing a more secure form of identification focused increasingly on costs, so that by 1984 costs became the dominant internal argument made against a national identification card.^{Footnote 23}

Costs also drove concerns regarding legalization, specifically regarding eligibility for social welfare benefits. Permanent residents would be eligible for social benefits, and Simpson-Mazzoli also allowed temporary legal residents to obtain SSI assistance for the blind, aged, and disabled.^{Footnote 24} Versions varied over the four years of discussion, with the House tending to offer the most generous benefits. While some in the administration, particularly Attorney General William French Smith, included the sociological problem of rewarding lawbreakers in his discussion of legalization, cost was the primary factor debated within the administration, which consistently pressed for the earliest reasonable date of entry in order to be eligible for legalization, and resisted providing benefits to residents with temporary status.^{Footnote 25} It also fought provisions that would require full federal reimbursement of state and local expenses for public assistance, education, and welfare for legalized immigrants.^{Footnote 26}

After costs, the relationship among the branches of government received sustained attention. As noted above, Simpson-Mazzoli required the president to study the use of existing identification documents and make any needed changes after a three-year period. The bill also gave the Judiciary Committee the right to review and reject whatever worker identification system the president decided to implement. This so-called legislative veto was a fifty-year-old practice by which Congress could overturn a decision by an executive office without following the full legislative process. While the inclusion of a legislative veto often encouraged Congress to grant significant new authority to the executive branch—knowing that it could, if necessary, rein things in—presidents had increasingly seen it as an encroachment on the executive branch. Through the 1970s, Congress added legislative vetoes to a broader range of bills, and both the Carter and Reagan administrations took aim at the practice.^{Footnote 27}

In 1983 the Supreme Court, in INS v. Chadha, invalidated the legislative veto, deciding that legislative power exercised on actors outside the legislature required action by both houses of Congress and presentation of the issue to the president for approval or veto.^{Footnote 28} The Reagan administration celebrated the decision but expressed concerns about how Congress might respond. If statutory provisions that included a legislative veto were unconstitutional, it might be argued that the corresponding authority given to an executive agency was also suspect, since Congress might not have granted the authority without the ability to include a legislative veto (as Justice William Rehnquist noted in his dissent in Chadha). And even if existing executive authority remained defensible, Congress might well take action to curb executive power in the future. Indeed, Counsel to the President Fred Fielding expressed just this concern to Reagan’s most senior advisers, warning that the White House needed to take the lead on shepherding Congress through the implementation of Chadha. Of particular concern were rumors that some members of Congress were circulating proposals to “curb executive and agency authority.”^{Footnote 29} As Fielding understood, the administration’s program of reducing the size and influence of the federal government depended, somewhat paradoxically, on the administration’s ability to maintain centralized influence over both design and implementation of programs. Agendas of devolution often require centralized executive authority in order to prevent other governmental units from filling in the resulting gap in government activity.^{Footnote 30} The Chadha case heightened the administration’s interest in protecting executive authority. The Reagan team managed to get the provision removed from the Senate bill after 1982, but the legislative veto remained an ongoing irritant between the administration and the House.^{Footnote 31}

Executive independence also emerged as an issue of contention in the enforcement of employer sanctions. The House, at the insistence of its Latino members, sought protections for workers who might face discrimination from employers afraid of inadvertently violating the hiring laws. Its bill included an amendment introduced by Barney Frank (D-Mass.) that made it an “unfair immigration-related employment practice” to discriminate among employees on the basis of national origin. The Frank Amendment created an independent agency within the Department of Justice to hear and adjudicate claims of national-origin discrimination.^{Footnote 32} While the Senate removed the agency from its bill at the administration’s behest, the House retained it and insulated agency officials and their decisions from review by the attorney general or the president. The administration consistently opposed the Frank Amendment as an inappropriate imposition by Congress on the presidency, arguing that appropriate methods of enforcement already existed in the department. By challenging the “appointment and removal power and his authority to review immigration judges’ decisions,” it argued, the bill would “substantially diminish the authority of the Executive Branch.”^{Footnote 33}

It is notable that the administration questioned the mechanism for worker identification, and not the existence of employer sanctions; focused on the indirect costs of legalization, not on the desirability of legalization; rejected an independent agency within the Department of Justice but not the adjudication of discrimination claims. As Reagan was advised in preparation for a meeting with Simpson in September 1984, the two main issues in need of resolution were “the money issue and the Frank (D-Massachusetts) amendment regarding a job discrimination enforcement mechanism.”^{Footnote 34} Indeed, there was little need to oppose enforcement of employer sanctions, even for a former California governor who had close relationships with western growers, as violators would only be guilty if they knowingly hired, recruited, or referred unauthorized workers.^{Footnote 35} In short, broad agreement between the administration and congressional reformers continued to exist on the core needs in immigration reform, just as Reagan’s task force had returned recommendations similar to those submitted by the Select Commission.

It is also worth noting that in its critiques of Simpson-Mazzoli, the administration did not simply resist “big government.” Its positions on employer sanctions and on search warrants offer telling examples. House Republicans viewed sanctions on employers as the most unacceptable feature of immigration reform. Yet one of the most consistent concerns expressed by the administration about the House bill was that it made employer sanctions voluntary until the attorney general informed an employer that an undocumented immigrant had been found in his employ. The White House insisted that sanctions be mandatory from the start. In addition, it insisted that the fourth amendment did not extend to open fields, rendering search warrants unnecessary. According to the administration’s position, employers should have no expectation of protection against searches in open fields.^{Footnote 36} Had the concern simply been a smaller, less intrusive government, neither position makes sense. Rather than harboring a general fear of big government, the administration focused on limiting federal budget exposure and maintaining enforcement under the purview of the executive branch.^{Footnote 37} As Michael Uhlmann described it to Ed Meese in 1983, the House bill would be “the worst of both worlds—substantially weakened enforcement provisions and budget-busting social service costs.” As a statement of policy noted as the bill moved through the House in 1984, “The Administration strongly opposes the massive budget ad-ons and the weakened enforcement provisions reflected in HR 1510.”^{Footnote 38}

As the legislation moved through Congress, and moved through the years, the political context began to wear on the Reagan team. Even as Reagan won the 1984 election in a landslide the strains of working in the White House, for a president who many felt underappreciated them, led many key advisers to seek positions elsewhere—most notable was the triumvirate that had served as chiefs of staff: Ed Meese left for the Department of Justice, James Baker went to Treasury, and Mike Deaver returned to the private sector as a lobbyist. Replacing those three with Donald Regan, according to Reagan chronicler Lou Cannon, removed much of the internal competition of the White House staff from the president’s awareness. While more comfortable for the conflict-shy president, this also removed some of the dynamism that had forced Reagan to confront issues and make decisions. Reagan’s approval ratings were high, near or above sixty percent through 1985 and well into October 1986, but the loss of key leadership and the inner turmoil and frustration began to hurt morale and reduce effectiveness behind the scenes.^{Footnote 39}

At the same time, because immigration issues confounded normal political alignments they promised little significant political payoff for victory, making it even more difficult to accept the potentially high costs and loss of executive authority pushed for by the House. Increasingly, the early determination for passage began to give way to internal conversations about veto threats, public withdrawal of support, and other means of distancing the president from the bills. But they came to nothing substantive. Although there was no veto-proof majority in Congress and Reagan could have killed immigration reform with a serious veto threat or strong stance against it, advisers repeatedly came back to the same conclusion—Reagan had come out in support of immigration reform, his task force had made recommendations similar in substance to the bills in Congress, and the president could not back out now. The tool used in 1981 to grasp the initiative—the task force—had become an albatross. The growing sense of being stuck is palpable in the memo traffic. Some began to hope that the legislation would die quietly, as when materials prepared for the 1984 reelection campaign suggested that “the best political solution [for dealing with immigration] is deadlocking the bill in conference.”^{Footnote 40}

The combination of policy and politics left the administration in a state of near paralysis. When Simpson again introduced immigration reform legislation (S.1200) in the Senate in 1985, Ed Meese plied the Domestic Policy Council (DPC) with background information on immigration reform that strongly suggested support. He provided a list of seventy-five reports to show that the issue had been much studied. He insisted that public opinion and editorial support for reform was strong, attaching a list of newspapers for and against (140 in favor and 13 opposed). He argued that the administration had introduced immigration legislation, that Simpson and Mazzoli had repeatedly introduced bills that were consistent with the administration’s goals, and that “S.1200, introduced by Senator Simpson and now before the Senate continues that pattern.” Finally, Meese reminded the DPC that both the “Administration and the President personally have strongly supported immigration reform for the last five years and have stressed the need for such legislation.” Indeed, he insisted that S.1200 was closer to the administration’s stated position than the previous Simpson-Mazzoli bill in significant areas, most notably in its use of civil fines (not criminal charges) in the employer sanctions provisions, and in its capped block-grant approach to federal reimbursement to states for social service spending.^{Footnote 41}

Despite Meese’s push, the Domestic Policy Council divided over whether the bill deserved support with major amendments or whether the bill was salvageable at all.^{Footnote 42} It is striking that after four years of immigration reform debate, the administration remained ambivalent on what the bill should contain. One expects specific and conflicting critiques coming up from affected departments and agencies and from legal counsel. But no one on the coordinating DPC, it seems, was enthusiastic about S.1200 and there was no consensus on what amendments should be added to make the bill acceptable. Typical was the response of Secretary of Agriculture John Block, who thought the administration “should support the bill, though we should not freeze our position too soon.” Apparently, the fourth time around was still “too soon” to stake out a position. The administration seemed unable to loose itself from the issue, and equally unable to affirm and fight for a clear, specific solution. At Meese’s suggestion, Reagan agreed to express support for S.1200 while directing the Department of Justice to “develop and coordinate important amendments for further consideration by the Council.” Those “important amendments” were not identified. The president had to support Simpson’s bill, but his advisers were still vaguely concerned about the details and unwilling to have him sign off and advocate for it in full, leaving Simpson (and observers everywhere) to question the president’s commitment. As described by one aide, immigration reform had reached the point where the administration was “going to punt.”^{Footnote 43} It would spend political capital neither to kill nor to champion immigration reform, but would continue its generic support of Simpson’s work. The immigration reform ball was fully in Simpson’s court. Any policy or political initiative sought and gained by the presidential task force was abandoned.

But this abdication of leadership in the legislative process does not signify simple passivity. One largely unexplored reason the administration could leave immigration reform to Congress, but still assume that Reagan would sign the bill, was that it was devising another way to manage the situation. Wary of the political pitfalls surrounding the bill, unable to reach internal agreement on what changes to seek, and yet unable to renounce support for immigration reform, the administration turned to using immigration reform to enhance other core priorities. In fact, the approach to immigration reform itself became part of a larger initiative in support of the administration’s agenda—most notably, limiting federal budget exposure, precluding regulatory requirements on states, and, especially, preserving the autonomy of the executive branch.

The mechanism that made this possible was the signing statement—a statement issued by the president when signing a bill into law. The statement may be spoken at the signing ceremony, written and released separately, or both. Historically, one function of the signing statement has been rhetorical, serving the political purpose of expressing appreciation for or disappointment in the contributions of congressional leaders and others throughout the legislative process. Another function has been constitutional, identifying the president’s concerns about the law, interpretation of its language, and intentions for implementing (or not) its provisions. The earliest presidential use of a signing statement was of the constitutional variety, when James Monroe sought to protect the president’s role as Commander in Chief from congressional imposition. Most uses following Monroe, however, have been rhetorical to thank supporters or shame opponents, and have been more prevalent during election years, reinforcing their political purpose. The Ford and Carter administrations accelerated the use of signing statements as part of an effort to protect the presidency in the face of a resurgent Congress following Watergate. In particular, these administrations reacted to the legislative veto, which became more popular after Watergate as a congressional tool to reign in the powers that accrued to the executive branch through midcentury.^{Footnote 44}

The Reagan administration did not invent the signing statement, but it was the first to employ it systematically as a strategic weapon.^{Footnote 45} Perhaps inspired by the Supreme Court decision in INS v. Chadha, in which the court seemed to take a presidential signing statement seriously in deliberating and deciding to invalidate the legislative veto, Attorney General Ed Meese began to formalize the use of signing statements as an intentional policy tool. He arranged for a publisher to print signing statements alongside congressional committee reports, thus providing much improved access to the president’s view of the legislation being signed. This practice would link the executive and legislative interpretations together, enhancing the status of the presidential perspective and facilitating a comparison. Meese also spearheaded a push to elevate the sophistication of the reasoning in signing statements, which heretofore tended to be drafted for public consumption in the style of a press release rather than in a form that might persuade. In February 1986, Meese went public with the administration’s new tool in a speech to the National Press Club, in which he stated that signing statements outlining “the President’s own understanding of what’s in a bill” would help with “future construction of what that statue really means.”^{Footnote 46} In July 1986, three months before Congress finally passed immigration reform, Meese provided a template and directed cabinet departments and agencies to draft signing statements for all significant pending legislation that concerned their areas of oversight. They were to search for opportunities to promote the administration’s priorities in three key areas: explaining the constitutional authority behind the bill (or identifying the lack thereof); making the statutory language sufficiently clear, particularly where it touched on core administration priorities; and reserving judgment on any items not specifically mentioned in the statement. By September, officials needed to provide signing statements when any “suitable opportunity to discuss related issues of the Administration’s program” arose, with the goal, as explained to Reagan by assistant Ken Cribb, of “restoring Executive Branch prerogatives.”^{Footnote 47}

As the administration refined its approach to signing statements, Congress unexpectedly passed immigration reform legislation. It had appeared dead in the House, but intense negotiations managed to attract just enough of the “strange bedfellows” opposition of liberal Democrats and conservative Republicans. The conference committee managed to iron out the remaining differences, and the bill passed Congress on October 17, 1986.^{Footnote 48} The Reagan team viewed the immigration bill as a particularly good candidate for its new tool of the presidential signing statement. The bill, according to Counsel to the President Peter Wallison, “contains an unusually large number of provisions that will be subject to judicial and prosecutorial discretion,” and “the President’s understanding, as expressed in the signing statement, is critical to assure proper administration of this law.”^{Footnote 49} According to procedure, agencies and offices provided input on concerns with the bill and possible language for a statement. The Department of Justice prepared the statement and sent it through the Office of Management and Budget to the president’s office. The final signing statement reflected the administration’s highest priorities for shaping the reception and interpretation of immigration law.

Actually, there were two signing statements for the Immigration Reform and Control Act of 1986 (IRCA). The president gave a spoken statement at the signing ceremony on November 6 and issued a written statement that also became part of the legislative history, per Meese’s designs. The spoken statement was essentially rhetorical, publicly celebrating America’s history as a nation of immigrants and thanking administration and congressional leaders for their work.^{Footnote 50} The written statement did the heavy lifting on using IRCA to further the administration’s agenda.^{Footnote 51} In it, Reagan took aim at issues that had less to do with immigration per se and more to do with executive authority, limited federal budget exposure, and federal-state relations.

With regard to executive authority, the written statement targeted the office of the special counsel that Congress had included to enforce the discrimination provisions. The “Frank Amendment” had been a major point of concern for several years for placing a semiautonomous special counsel in the Department of Justice and expanding the coverage of employment discrimination in Title VII of the Civil Rights Act. By its location in the Justice Department, the statement noted, Reagan understood the special counsel to serve “at the pleasure and with the policy guidance of the President.”^{Footnote 52} Furthermore, lest the special counsel get too expansive in its work, Reagan noted that it should only initiate an investigation if an employer’s fear of sanctions appeared to be the cause of discrimination. Any other motivation for discrimination fell outside the purview of the special counsel’s office and should be left to the other agencies in the Department of Justice—those not protected by the Frank Amendment from review by the attorney general or president. In the context of its larger concerns about congressional encroachment on executive authority, the administration made clear that any office within a cabinet department would be expected to follow administration policy and stay in its lane.

Executive authority also concerned privileged information. IRCA required executive-branch agencies and offices to provide any requested information to a new Commission on Agricultural Workers (half of whose members were appointed by Congress) and the Commission for the Study of International Migration and Cooperative Economic Development (all of whose members were appointed by Congress). Here again, the legislature seemed to be encroaching on executive prerogatives. Reagan stated that “access to Executive branch information will be limited in accordance with established principles of law, including the constitutional separation of powers.”^{Footnote 53} Although a minor aspect of the larger bill, and one that had virtually no bearing on the core objectives of the legislation, the Reagan team used the opportunity to draw the larger issue of executive privilege to the surface.

Moving beyond the relationship between branches of government, the signing statement sought to limit federal financial exposure where it could by reducing the number of immigrants eligible for benefits. Throughout the years of debate over Simpson-Mazzoli, the House typically sought the most recent date possible for entry to be eligible for benefits. The administration, conversely, tried to push the date further into the past to make fewer immigrants eligible and thus lower the cost of benefits and other services accessed by newly legalized residents. The administration consistently, if reluctantly, accepted more recent dates and an enlarged pool of legal residents. But in the signing statement the administration took two opportunities to shrink the number of people who would become eligible for benefits. First, it listed out specific conditions that would make a person likely to become a public charge, and therefore ineligible for resident status. Second, it disqualified for legal status those who left the United States without authorization and then returned illegally, even if they originally arrived prior to the cutoff date. It also closed a potential loophole through which immigrants could get temporary worker status.^{Footnote 54} These provisions searched every nook and cranny for ways to reduce the number of immigrants eligible for legalization and therefore eligible for benefits.

The signing statement also promoted federalism and reduced the regulatory burden in its provisions regarding sanctions and employment verification. IRCA stated that an employer would be in compliance with the law if he or she received an employee from a state employment agency referral—in other words, if a government body referred a candidate, the employer was not responsible for the worker’s status. Here the Reagan team anticipated that such a provision might encourage new mandates on state offices to provide employers with worker verification services. Likely envisioning not only a judge reviewing the law but also an executive agency head implementing it, Reagan insisted that this provision did not obligate state employment agencies to issue referral documents or to carry out “any additional affirmative duty or obligation.”^{Footnote 55} Immigration reform would place no new regulatory burdens or mandates on state agencies.

Finally, Reagan used his signing statement to narrow enforcement of the discrimination provisions. The law barred discrimination in employment based on national origin or on citizenship status provided the applicant is lawfully in the United States. The original Frank Amendment in the House bill explicitly used the standard of “disparate impact” to identify unlawful discrimination. Since the Supreme Court decision in Griggs v. Duke Power Company in 1971, the disparate impact standard had allowed for findings of discrimination without proof of specific intent to discriminate on the part of the accused offender.^{Footnote 56} If a practice had different effects on identifiable groups (at Duke Power, the test for promotion weeded out virtually all African Americans, even while it had no connection to job skills required for the job), it was assumed to be discriminatory and the burden of proof shifted to the accused to prove that the different outcomes resulted from something other than discrimination. The Senate had no such provision, but accepted the Frank Amendment in conference. However, the conference committee stripped the language of “disparate impact” from the bill, leaving the prohibition and the enforcement agency but no explicit requirement for standard or burden of proof.

Since the final bill identified no specific standard, Reagan used his signing statement to identify “discriminatory intent” as the standard by which the discrimination provisions should be enforced: “The party bringing the action must show that in the decision-making process the defendant’s action was motivated by one of the prohibited criteria.” Employers may require English speaking or an aptitude test even if the requirement or test is not directly pertinent to the job, “so long as the practice is not a guise used to discriminate on account of national origin or citizenship status. Indeed, unless the plaintiff presents evidence that the employer has intentionally discriminated on proscribed grounds, the employer need not offer any explanation for his employee selection procedures.”^{Footnote 57}

Fifteen years of employment discrimination law would be irrelevant to how the administration enforced immigration-related employment discrimination, despite the clear indication in Frank’s original amendment that “disparate impact” was the intended standard. Frank immediately complained to the press, calling Reagan’s interpretation “intellectually dishonest” and “mean spirited.”^{Footnote 58} But the administration took the opportunity to offer some relief for agricultural business interests and some salve for conservatives who wanted the administration to do more to reverse what they viewed as the trend toward reverse-discrimination and minority preferences, quietly weakening but not rejecting the law’s antidiscrimination provision. This matched the administration’s more general approach to civil rights of avoiding possibly bloody battles and working around the edges of policy enforcement while accepting the policies themselves.^{Footnote 59} It also served the larger goal of reducing the regulatory burden on American businesses.

These provisions, as adjusted in Reagan’s signing statement, had little direct effect on the primary goals of the legislation. Reagan did not intend these provisions to undermine those primary goals, which he praised in his comments upon signing IRCA. Reagan himself believed in America as a land of opportunity and a land of immigrants, and he remained ambivalent about closing the gates too tightly. Immigration reform represented an issue on which the two strands of Reagan’s particular brand of conservatism blended well—his essentially liberal optimism (some call it sentimentalism) of America as a land open to all in need of opportunity, and his libertarian commitments to the free flow of labor and open markets. Of the two key elements of immigration reform, amnesty fit particularly well with both Reagan’s optimism and the economic needs of southwestern agriculture, while sanctions on employers were made more palatable when Senate Republicans required that guilty employers must have “knowingly” hired illegal workers.^{Footnote 60}

Reagan and his task force had early on staked out a position much in line with the preferences of reformers in Congress, rendering his greatest political strength—the power of repudiation—inapplicable. But with regard to the administration’s core priorities, the provisions identified in the signing statement could contribute to the larger project of recasting the federal government’s role in American life even as they strengthened the presidency relative to Congress. Here the work of immigration reform provided Reagan an opportunity to repudiate the tendencies and priorities of the liberal regime that preceded him. In rejecting the disparate impact standard of discrimination, casting off the encroachments of the legislature into executive privilege, limiting the expansion of access to federal benefits, and forestalling new mandates and requirements on local and state governments, Reagan was on more familiar ground. The signing statement did not provide the president with a particularly public or political opportunity for repudiation—his spoken remarks on signing IRCA focused on celebration and did not mention most of the provisions in the written signing statement. But it reinforced the trajectory that Reagan sought on domestic issues. And it allowed him to accept the bill and fulfill his early support by signing immigration reform into law even while continuing that trajectory.

For an issue that had begun with an attempted roar of executive initiative, immigration reform appeared to have ended with a whimper. But the specific issues targeted by the signing statement represent consistent priorities beyond the immigration issue itself. Those priorities fell more firmly within Reagan’s typical repudiation of liberal policies. And the practice of issuing signing statements also served the administration’s goal of enhancing executive authority. An accumulation of signing statements intentionally focused on core priorities (even if not central to their respective bills) could build an edifice of policy implementation and interpretation distinct from the debates and negotiations of the legislative process. The trajectory from task force to signing statement in the Reagan administration’s approach to immigration reform reveals an early attempt at creating such an edifice, even as it was challenged by issues outside its core agenda.