NYT Editorial Board: President should sidestep Congress and use executive action to admit *fewer* Cuban refugees because it isn’t fair

December 23rd, 2015

The New York Times Editorial Board half-heartedly urges Congress to repeal the Cuban Adjustment Act of 1966. As this law has been implemented, if a Cuban refugee makes it to the beach, there is an expedited mechanism to admit him, and become a legal permanent resident within 1 year. If the refugee is interdicted at sea are promptly returned home. But the Times really doesn’t expect Congress to act on this.

So here is the real proposal: the President should use executive action so that Cubans are not treated more preferentially than refugees from other Central American Countries.

If lawmakers don’t act, the Obama administration has several options. The Cuban Adjustment Act gives the executive branch discretion to admit Cubans who arrive on America’s shores, but it does not require that the government do so. The Obama administration should negotiate a new agreement with the Cuban government that makes orderly immigration the norm. Cubans who arrive in the United States without authorization should be sent back unless they show a credible fear of persecution. The United States should also end a separate program that encourages Cuban medical professionals on government assignments abroad to defect to the United States. …

American officials are at a loss to explain the special treatment for Cubans, which stands in stark contrast to the harsh way the United States typically treats Central Americans, including minors, many of whom are fleeing for their lives.

Perhaps one way to explain it is that Congress passed a specific act affording preferential treatment to Cubans. FactCheck explained how this works:

The Cuban Adjustment Act of 1966 gives Cubans a right to become legal permanent residents once they have reached the U.S. and have been here for one year, provided that the U.S. Attorney General doesn’t object. Cubans are the only nationality to which Congress has awarded this special treatment. The legislative history of the act makes clear that immigrants from Cuba are considered to be refugees under international law. Congress amended the act in 1996 to specify that it will be repealed if and when Cuba becomes a democracy.

Cuba has not yet become a democracy, notwithstanding the recent normalization of relations. And imagine that–Congress treats immigrants from different countries with more or less preferences based on a normative judgment about that country.

But following statutes is so 2001-2008.