All signs this morning are that congressional Republicans have no idea how they are going to get out of the jam they’ve landed themselves in on funding the Department of Homeland Security. Senate and House Republicans are fighting bitterly over how to accomplish the seemingly impossible: Passing DHS funding that also rolls back Obama’s executive deportation relief through both chambers before Feb. 27, when funding runs out.
It turns out, though, that Republicans may have an escape hatch: It’s very possible the courts may bail them out — temporarily, at least — before that fast-approaching deadline. However, at that point, the situation could get even crazier, posing a new dilemma to Republicans.
Some two dozen states have sued to block Obama’s executive actions, and the case will be decided by a Texas judge any day now. Many immigration advocates fear this judge is likely to place a stay on Obama’s actions, given his previous opinions.
There are fresh signs a ruling could come as early as this week. Immigration attorney David Leopold, who is closely tracking the case, says that yesterday, the judge dispatched a number of procedural motions in the case, a sign a ruling may be imminent. “He’s clearing the decks,” Leopold tells me. “This flurry late yesterday suggests he’s about to rule.”
Of course, it’s possible that the judge could either postpone a decision or surprise everyone and dismiss the case on standing grounds, which is a serious vulnerability for this lawsuit. But this judge very well may block Obama’s actions this week. If so, it will come just in time for the DHS funding deadline.
This would give Republicans a near-term way out, but it would also complicate the route forward in other ways. Republicans who want this mess resolved might argue that, now that the courts are blocking Obama’s lawlessness, Republicans can safely fund Homeland Security without including measures that roll back his actions. (Conservatives won’t support any funding that doesn’t roll back those actions, so Republicans can’t get “clean” funding through the House; but Republicans can’t get anything that does roll them back past a Democratic filibuster in the Senate.)
But here’s the rub: The administration would quickly run to the 5th Circuit Court and request that it overturn the lower court’s stay. It’s very possible — though not certain by any means — that the 5th Circuit would dismiss the case on standing grounds and allow Obama’s executive actions to move forward as scheduled later this month. (It’s also possible the 5th Circuit could side with the Texas judge and keep the stay in place, which means we’re headed for the Supreme Court.)
In the short term, if Republicans who want this resolved do seize on a lower-court ruling to argue for funding DHS cleanly, conservatives may respond — understandably — that it could be overturned on appeal. So Republicans must not blink in the drive to block Obama’s actions in Congress, to be absolutely certain the dragon is dead. Which means the brinksmanship could only get crazier from here on out.
* REPUBLICANS BLAST EACH OTHER OVER IMMIGRATION IMPASSE: The New York Times has a good overview of the ways House and Senate Republicans are now attacking each other very aggressively over the failure to block Obama’s actions. This quote, from Rep. Mo Brooks of Alabama, is pretty lively:
“Senator McConnell has engaged in a half-hearted effort to date. McConnell has engaged in a policy of surrender without fighting. I’m not going to vote to fund unconstitutional conduct by Barack Obama. Period. End of subject.”
Oh dear. As always, the Rule of Cruz applies: The problem isn’t with the strategy itself; the problem is that Republicans like McConnell are “surrendering” before it can be allowed to work.
* REPUBLICANS DIVIDED OVER HOW TO PROCEED: Meanwhile, Politico reports that a number of House and Senate conservatives are actually advocating for letting DHS’s funding expire, on the theory that this will force Obama to relent and reverse his executive actions. One dissenter is Rep. Greg Walden of Oregon:
“I don’t think we win that debate in the press, we don’t, for a lot of reasons,” Walden said. “Some people think we can. I’m not one of them. Just because the American people expect us to come here and get our job done and get our work done, and work out our differences — and especially in the area of national security.”
Walden is chair of the NRCC, which means part of his job is to ensure Republicans hold their majority, so it’s particularly notable that he recognizes the political dangers here.
* GOP SENATOR: WE WILL GET BLAMED FOR DHS SHUTDOWN: The Hill quotes a number of GOP Senators wringing their hands about how awful a DHS shutdown would be for the country, including this one:
One senior GOP senator leaned in and whispered to The Hill: “Of course Republicans will get blamed” for a shutdown.
You know, it’s almost as if Republicans have tried this before and might even learn from their previous experiences.
* WHAT TO WATCH TODAY: Sen. Patty Murray and Rep. Rosa DeLauro are set to introduce the Healthy Families Act, which would expand paid sick leave for American workers. Eileen Appelbaum explains:
As momentum increases and paid sick days laws pass at state and local levels, employers face a challenging array of requirements that vary in the number of hours it takes a worker to earn an hour of sick leave, in the purposes for which earned sick leave can be used and in who is covered by the sick leave legislation. The Healthy Families Act, which would allow workers to earn one hour of sick leave for every 30 hours worked up to seven days of paid sick time a year, would make it easier for employers to comply by creating a single national standard.
Republicans will probably say No. But this is worth watching: Dems will emphasize sick leave as part of a broader set of issues reorienting the liberal agenda more toward workers than the very poor, which could have ramifications for 2016.
* THE PROBLEM WITH OBAMA’S WAR AUTHORIZATION REQUEST: Yale law professor Bruce Ackerman has a good piece explaining that Obama’s request is too vague in defining the target of military action and leaves in place the 2001 authorization, which could allow the president — or the next one — to claim authority to make war outside of any new authorization that passes:
By 2018, the 2001 authorization will be 17 years old. But Congress’s refusal to repudiate it in 2014 will give it new legal vitality. After all, Mr. Obama isn’t hiding his claim that the old resolution suffices for the new battle — if Congress doesn’t repeal it, the next president’s lawyers will predictably assert that lawmakers were persuaded by Mr. Obama’s expansive claims.
My point exactly. Obama has signaled he is open to repealing the 2001 AUMF. But with Republicans insisting that the new AUMF is too limiting, it’s unclear whether Congress will step up and repeal it. If not, the new AUMF’s significance is questionable.
* GINSBURG: PUBLIC IS READY FOR GAY MARRIAGE: In an interview with Bloomberg, Justice Ruth Bader Ginsburg says the public is ready for SCOTUS to rule in favor of marriage equality:
With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right. “The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’…I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”
With the court considering whether to enshrine a constitutionally protected right to gay marriage, it’s very possible the justices will weigh the country’s cultural evolution as it makes its decision.
* AND TODAY’S ADVENTURE IN FOX NEWS POLLING: From Fox’s latest poll:
The Obama administration says the United States is pursuing a strategy in the Middle Cast that relies mainly on diplomacy and alliances rather than decisive military force. Does this sound more like a serious attempt to address the problem with Islamic extremists or a halfhearted attempt?
Fair and balanced!