A federal judge in Texas late Monday presented Congressional Republicans with the opportunity to end a politically risky standoff over funding for the Department of Homeland Security by rendering their demand moot that President Obama’s executive orders on immigration be defunded.
U.S. District Court Judge Andrew Hanen, from his courtroom in the border town of Brownsville, issued a temporary injunction barring the federal government from moving forward with the president’s plan to grant protection from deportation to millions of immigrants who entered the country illegally. He was ruling on a suit filed by more than two dozen states’ Attorneys General, who claimed that the administration’s plan to not enforce existing immigration law against a certain class of violators created an undue financial burden on their states.
The ruling will be appealed by the administration, and it’s not at all clear that it will stand, but in the interim it appeared to offer Congressional Republicans an off-ramp of sorts. The House has passed a DHS bill that defunds the programs covered by Judge Hanen’s rulings, but Senate Democrats have filibustered the bill’s consideration in the Senate, and the president has pledged to veto it.
Public opinion polling suggests that blame for a partial DHS shutdown, which would occur if the agency is not funded by the end of the month, would land primarily on Republicans. So, many assumed that Congressional Republicans would seize the opportunity to avoid a shutdown. They were wrong. With the off-ramp approaching, GOP leaders instead stepped on the gas.
“This ruling underscores what the President has already acknowledged publicly 22 times: He doesn’t have the authority to take the kinds of actions he once referred to as 'ignoring the law' and 'unwise and unfair,' said Senate Majority Leader Mitch McConnell (R-KY) in a statement. “Senate Democrats – especially those who've voiced opposition to the President’s executive overreach—should end their partisan filibuster of Department of Homeland Security funding.”
“We will continue to follow the case as it moves through the legal process,” said House Speaker john Boehner (R-OH). “Hopefully, Senate Democrats who claim to oppose this executive overreach will now let the Senate begin debate on a bill to fund the Homeland Security department.”
Republican Sen. Jeff Sessions of Alabama, one of Congress’s strongest opponents of illegal immigration, said, “President Obama has already shut down the Department of Homeland Security by ordering tens of thousands of immigration officers and agents to violate our laws and their oaths, sabotaging immigration enforcement and border control. Republicans are trying every day to restore Homeland Security – only a Democrat filibuster stands in the way.”
Some observers on Tuesday said the court ruling only increased the likelihood that Republicans will eventually allow DHS to be funded and will take the battle over immigration elsewhere.
“The endgame here is clear: DHS is going to get funded,” said Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia’s Center for Politics. “There may be a shutdown of DHS temporarily, but it’s going to get funded. The immigration fight is going to continue.”
“In so many of these funding fights or ideological battles with the White House it just seems like Republicans in Congress just want to show the base that they are fighting, but it’s just posturing.” In the end, he said, “The government needs to function.”
Others weren’t so sure.
“There is no meeting of the minds and that’s critical,” said Rutgers University political scientist Ross Baker. “That’s the result of the institutional differences between the House and the Senate and those are not easily overcome. John Boehner is under tremendous pressure from his conservatives to pass a bill that contains limitations on what the president can do on immigration and McConnell is presented with this which is unpalatable not just for the Democrats but for some Republicans as well.”
Baker added, “The other thing of course is even if the Senate were to take it up and pass it, it faces a veto. And nobody wants to go out on a limb for something that is eventually going to be vetoed. So I just don’t know how this is going to get resolved other than they’re just going to have to give up, accept that they can't really do anything that the president opposes and hope that somebody has standing to challenge the president's decisions on immigration referrals in court.”
One former senior Democratic Senate staffer predicted a temporary extension of DHS funding followed by a renewed fight over the same topic.
“I kind of laughed out loud when I heard some people suggest they were going to take this ‘offramp,’” said James Manley, head of the communications practice at QGA Public Affairs and a former spokesman for then-Senate Majority Leader Harry Read (D-NV). “Based on what I’ve seen I don’t believe the Republican caucus is going to believe that Speaker Boehner should find an out to this.”
So how does it end? “No one knows,” said Manley. “But I have five bucks that says they’re just going to punt it down the road again and just do a short term extension.” If that happens, he said, “Democrats may put up a fight, at least publicly, but privately they will be very happy with this situation.”
Eric Pianin contributed to this story.
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