Congressional Republicans are considering a preemptive strike against President Obama’s threatened use of an executive order to overhaul the immigration laws by using the appropriations process to bar the expenditure of federal funds to implement Obama’s unilateral action.
Lawmakers will return to work next week following the Republicans’ resounding victory in Tuesday’s mid-term election with a long to-do list before the end of the year, which includes approval of a mega spending bill to keep the government running through next September. While the GOP won’t officially take control of the Senate until early next year, they will likely exercise enhanced clout in their dealings with the outgoing Democratic leadership and the White House.
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In a letter on Wednesday to outgoing Senate Majority Leader Harry Reid (D-NV), six conservative and Tea Party senators including Ted Cruz of Texas and Mike Lee of Utah, vowed to “use all procedural means necessary” to fight Obama’s executive action – one that could grant millions of illegal immigrants protection from deportation.
Moreover, the conservative Heritage Foundation’s website The Daily Signal says that aides to conservative senators indicate their bosses are “rallying around a strategy” of using appropriations bills to withhold the funds Obama would need to implement his plan.
Senate Republican Leader Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH) both used their post-election news conferences to warn Obama of grave repercussions if the president moved ahead with his executive order before the House had another chance to draft comprehensive legislation.
Boehner told reporters at the Capitol on Thursday that Obama would be “playing with fire” and that there would be no chance for a broader congressional agreement if he moves ahead with his plan. McConnell said that Obama’s threat to issue the order was “like waving a red flag in front of a bull” and that unilateral presidential action without congressional consent “poisons the well for the opportunity to address a very important domestic issue.”
McConnell first raised the possibility that Republicans would challenge Obama’s policies on immigration, the Affordable Care Act and other controversies by attaching riders to appropriations bills, during an interview with Politico last August while he was campaigning for reelection. “We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy…. That’s something he won’t like, but that will be done,” he said. “I guarantee it.”
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McConnell, the presumptive Senate Majority Leader and Boehner have complained of Obama’s “go-it-alone” strategy of using executive orders over the past two years to circumvent congressional will on a raft of issues, including Environmental Protection Agency clean air rules. Obama vowed late in June to issue his immigration reform orders by the end of the summer, but then delayed action at the behest of some Democratic senators who feared the order would hurt their chances of reelection.
"I think it's fair to say that I've shown a lot of patience and tried to work on a bipartisan basis as much as possible and will keep doing so," Obama said at his news conference on Wednesday. "I've consistently said that it is my profound preference and interest to see Congress act on a comprehensive immigration reform bill."
"What we can't do is just keep on waiting," he added. "There's a cost for waiting."
The president reportedly has been considering a large-scale plan that would potentially defer deportations of up to 5 million of the nation’s 11 million undocumented immigrants and grant more green cards to foreign workers. In August, the White House began preliminary planning to send Obama to the Texas border to help lay the groundwork for an announcement, according to The Washington Post, but those plans were scrapped in part because of an ongoing crisis caused when tens of thousands of unaccompanied children from Central America streamed across the U.S.- Mexican border into this country.
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Even if the Republicans are serious about blocking Obama’s immigration executive action, it won’t be easy – especially with the Democrats still in charge of the Senate until the end of the year. Senate Appropriations Committee Chair Barbara A. Mikulski (D-MD) and House Appropriations Committee Chief Harold Rogers (R-KY) began talks on a major spending package on Election Day, with an eye to finishing up work in December.
“Technically, it would be very difficult to preemptively block something like” the executive order, explained a House GOP aide. “It would be technically hard to write such legislation. We don’t necessarily know what the executive action would be, what it would effect, what accounts it would effect. I wouldn’t suspect it would get much support. Something like that should be considered on its own merits, and not as part of a massive appropriations bill.”
Moreover, on the Senate side, Republicans would have to garner at least 60 votes to surmount a Democratic filibuster on any effort to attach the executive order prohibition to legislation funding government agencies with responsibility for immigration policy.
Scott Lilly, a former Democratic House Appropriations Committee chief of staff, said in an interview today that attempts to legislate a preemptive strike against the president’s immigration order would raise serious legal issues and would require extraordinary consensus among Republicans on this highly controversial topic.
“The big thing is that they will have to reach a common ground so that they can get 60 votes in the Senate and 218 in the House,” said Lilly, a senior analyst with the Center for American Progress, a liberal think tank. “Once they get past simply trying to block from unilateral action, then they get into a lot of the policy questions on immigration that they haven’t been able to produce a unified front on. And if they get into a fight on this, that compromises the ability to pass an omnibus spending bill – which means that gets kicked over to the 114th Congress” – something the GOP leadership would prefer to avoid.
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