With Congress returning to town, GOP leaders are under sustained and intense pressure from the right to use creative defunding tactics — ones that could lead to a government shutdown — to force President Obama to relent on his executive action to shield millions from deportation.

But some Republicans have begun suggesting another, even more novel response to Obama’s move: Legislating.

The Hill reports that some Republicans say the best course of action is to try to seize control of the immigration debate by acting on reform:

“The best way to criticize governing through fiat is to offer an alternative,” said Republican activist Grover Norquist.

“What appears to be the smart move, and what they’re going to do, is do immigration reform through normal legislative [channels],” said Norquist, the president of Americans for Tax Reform. “Do it in a way that Republicans find acceptable, meaning take the border seriously [and] think of America’s economic needs. Move forward on that and let him [Obama] be over in the corner stamping his feet.” […]

“We have an obligation to do something — the ball is in our court — and in spite of whatever political considerations there may be on this, the public is ultimately going to judge us on whether we’ve found a solution to this problem or not,” said Al Cardenas, former head of the American Conservative Union, who’s now pushing Republicans in Congress for reforms. […]

Rep. Mike McCaul (R-Texas), chairman of the House Homeland Security Committee, is crafting legislation to bolster border enforcement….Sen. Chuck Grassley (R-Iowa), the incoming chairman of the Senate Judiciary Committee, said Republicans are considering “a number of things” on immigration, including proposals “to nullify” Obama’s recent executive action.

Good. If Republicans don’t like this executive action, they have a recourse: They can try to pass something replacing or rescinding it. To be clear, I’m not arguing that the failure of Republicans to legislate on this issue alone constitutes justification for Obama’s action. (Many legal experts agree the action is legal on its own, and granting its legality, it’s also justifiable on its own merits.) Rather, the point is that Republicans who believe Obama is exceeding his authority can pass something designed to tighten up immigration law and restrict this particular exercise of that authority.

As Republican lawyer Margaret Stock has put it, immigration statute is “chock-full of huge grants of statutory authority to the president,” meaning that “Congress gave the president all these powers, and now they are upset because he wants to use them.” Which is also to say that Congress can take that authority away. Indeed, that’s exactly what House Republicans tried to do last year when they passed a measure rescinding the authority to defer the deportations of immigrants brought here illegally as children.

Presumably, if Republicans do try to pass limited immigration reforms like those discussed above, they would include new measures rolling back Obama’s latest actions. Democrats would try to block them in the Senate, and if that failed Obama would veto them. So the standoff would continue, particularly since there is no indication that Republicans are willing to entertain the goal of legalization for the 11 million in the new round of legislative responses now being mulled. This has always been the central cause of Congress’ inaction on this issue: Republican leaders know some form of legalization has to be part of the overall solution, but have proven unwilling to do the hard work of figuring out what real-world policy tradeoffs would make it possible for them to embrace that goal — and have been unwilling to brave the rage from the right that would inevitably result.

And so, a GOP legislative response probably won’t defuse the stalemate, and the executive action would remain. Which is why conservatives are demanding the GOP response go further and include defunding tactics. It’s unclear whether GOP leaders will ultimately go that route. But for now, it’s worth reiterating that a legislative response actually does remain as a feasible course of action, and it’s good to see some Republicans are pointing that out.


* BOEHNER WARY OF GOVERNMENT SHUTDOWN: The New York Times reports that Speaker John Boehner and his aides are working to persuade rank and file members that using government funding fights to battle Obama’s deportation relief is folly and doomed to fail. In one private meeting:

Mr. Boehner, according to those present, promised to fight the president “tooth and nail.” But he warned that the party members needed to coalesce around a strategy that gives them a stronger chance of success in combating Mr. Obama. Only Republicans, he said, would be blamed for a shutdown, just as they were last year.

Government shutdown fights institutionally favor presidents over Congress. The question, though, is: Can Boehner get enough Republicans to pass government funding that doesn’t defund Obama’s executive action? If not, then what?

* GOP WOULD TAKE BLAME FOR SHUTDOWN: A new CNN poll suggests Boehner is right to fear Republicans would get the blame:

If the federal government shuts down, do you think that Barack Obama or the Republicans in Congress would be more to blame for that?

Obama: 33

Republicans: 50

Both: 13

Also, the poll finds that 68 percent say Republicans are not doing enough to cooperate with Obama, while 57 percent say the same about the president.

 * REPUBLICANS MULL PARTIAL SHUTDOWN: Ginger Gibson explains the latest strategy making the rounds:

Republicans are looking at a partial option: Fund the government until September 2015 – what Democrats want – except the parts of the government that execute immigration functions…The immigration parts of the government would be funded only until early next year, when Republicans control the Senate and they can use the leverage of a partial shutdown to try to force Obama to reverse himself. To fully use that leverage, those parts of the government might actually shut down. And the pieces that would be lost are the ones that Republicans like, enforcement and deportation operations.

Yeah, that does present a problem, doesn’t it. But whatever it takes!

* DEMS WON’T ‘ENABLE’ GOP SHUTDOWN STRATEGY: Roll Call reports that House Democrats are vowing that they won’t participate in any GOP strategy of funding most of the government (minus the parts executing Obama’s action). Theoretically this could make it even harder for Republicans to pass something keeping most of the government open, if House conservatives decide it isn’t an aggressive enough strategy and defect. Fun times!

 * REPUBLICANS KNOW SHUTDOWN WILL FAIL: Politico brings an interesting tidbit of reporting: on how GOP leaders — Boehner, Kevin McCarthy, and Steve Scalise — are plotting to deal with the problem they face:

Inside Republican leadership, senior aides and lawmakers freely admit that the executive order — no matter how unpopular it is — will likely stand and there’s little Congress can do about it. So Boehner, McCarthy and Scalise need to craft a process that will allow conservatives to vent, but prevent a shutdown.

Because everything must be geared towards “allowing conservatives to vent,” whatever the consequences…

* OBAMA ACTIONS WILL CLARIFY CHOICE FOR VOTERS: E.J. Dionne writes today that Obama’s executive actions will challenge Republicans in ways that will helpfully clarify the contrast between the two parties, and not just on immigration, on climate, too:

Obama’s executive actions on immigration squarely challenge congressional Republicans to put up or shut up on their claims that they actually want reform…The Obama administration moved on another front last week to curb ozone emissions linked to asthma and heart disease. Republicans said they would try to block the new anti-pollution regulations. Okay, let’s fight it out. Again, conservatives will have to explain why they want to reverse an initiative rather than obstruct action altogether and then blame Obama for being ineffectual.

Of course, they can also just continue chanting about #ObummerTyranny, secure in the knowledge that this will keep the accolades coming from the Conservative Entertainment Complex.

* DON’T FORGET ABOUT THE LEGAL CHALLENGE TO OBAMACARE: Don’t miss law professor Nicholas Bagley’s detailed response to the legal argument, to be heard by the Supreme Court this spring, that could gut Obamacare subsidies in three dozen states. As Bagley notes, the evidence is overwhelming that Congress never assigned the weight to the key phrase — “exchange established by the state” — that the challengers’ argument claims.

Of course, five SCOTUS justices could simply shrug and say, tough luck!