As was entirely expected, a federal judge in Texas has temporarily blocked President Obama’s executive actions shielding millions from deportation. This was probably inevitable given the previous excursions into incendiary rhetoric about immigration from this particular judge, George W. Bush appointee Andrew Hanen.
For all practical purposes, however, the judge’s action may not give Republicans a way out of the current political standoff in Washington over whether to fund the Department of Homeland Security, which is intensifying as the funding deadline looms later this month.
One key question is whether Republicans will now agree to fund Homeland Security cleanly. After all, the Courts have shown they are blocking Obama’s lawlessness, so there’s no longer any need for keeping the measures that roll back Obama’s actions in the bill funding DHS, right?
Well, maybe. The problem for Republicans is that the administration will immediately ask the 5th Circuit Court of Appeals to lift the injunction blocking Obama’s action, and Republicans cannot count on winning at that stage. This could create a dilemma for GOP leaders. They may argue — internally, at least — for funding DHS cleanly now, to escape the political jam they are in. But we may not know for a few weeks how the 5th Circuit will rule, which means that sooner rather than later Obama’s actions could very well be allowed to proceed. And so, conservative may insist — understandably — that GOP leaders refrain from funding DHS cleanly, and continue demanding the inclusion of measures rolling back Obama’s action, just in case the Texas judge’s injunction is lifted.
Now, it’s entirely possible the 5th Circuit could uphold Hanen’s injunction, which means Obama’s actions would be temporarily on hold and we’re probably on our way to the Supreme Court. That would be a huge victory for Republicans, at least for now. But it’s also entirely possible the 5th Circuit will issue a stay on Hanen’s injunction — meaning Obama’s actions would go forward.
Here is where the quality of Hanen’s opinion comes in. Some legal experts had already questioned” whether the states had standing to bring this lawsuit, because they can’t claim direct injury. One expert, Laurence Tribe, thinks the 5th Circuit will lift the Texas court’s injunction on standing grounds.
Hanen’s opinion argues that the states do have standing, based partly on the idea of “abdication,” i.e., that the executive actions constitute the failure to enforce the law, and that the states are suffering injury as a result. In other words, Hanen — while not reaching a final ruling on the Constitutionality of Obama’s actions — is effectively siding with critics who claim they amount to lawless “amnesty.” Indeed, his opinion actually calls those actions “creating the law from scratch.”
As you all know, I think that argument is utter nonsense. But there’s no need to re-litigate that debate here. Suffice it to say that, if Republicans really think this argument is strong enough to survive appeal — and that it will succeed in blocking Obama’s actions over the long term — then maybe they should just go ahead and fund DHS cleanly right now.
* QUOTE OF THE DAY, GOP-FANTASY-OBAMACARE-ALTERNATIVE EDITION: The Post has a great look at the disruptions that will unfold if the Supreme Court guts subsidies for millions. Note this quote from Erin Meredith, a Republican from Texas who dislikes Obamacare but likes the subsidies she’s getting from it, which she’d lose, since Texas hasn’t set up a state exchange:
“If they’re not going to participate in Obamacare and I’m not going to have these financial benefits, which will force me to pay $220 a month for coverage, do you know if Greg Abbott, our governor, has any plan to offer something comparable?” Meredith asked in an e-mail. “I understand and support his efforts to put Washington back in its place. I just don’t want that to come at the cost of hard-working Texans and their ability to maintain medical coverage.”
Yes, I’m sure Abbott will get right on that. In all seriousness, this is perhaps a hint of the dilemma a SCOTUS ruling with the challengers might create for GOP lawmakers (presuming they’ll even care about disruptions for their own constituents).
* STANDING QUESTIONS INTENSIFY IN KING LAWSUIT: Don’t miss law professor Nicholas Bagley’s two part series explaining the mounting questions about the plaintiffs in the lawsuit that could do severe damage to Obamacare. The first dissects the questions that are arising around the circumstances of each of these challengers. The second calls on the Supreme Court to take these questions seriously, and explains how the Court could do that.
* TEXAS RULING COULD HAVE A SERIOUS IMPACT: Even if the 5th Circuit does lift the Texas judge’s injunction on Obama’s deportation relief, this court ruling could have major ramifications for the success of the deferred-deportation program itself. Dara Lind has a good piece explaining why:
Community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it’s safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach. Organizers are worried about a “chilling effect”: by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won’t believe the program is safe or permanent.
This is one of the reasons opponents brought this lawsuit; even if it ultimately fails, it could discourage many from availing themselves of the program.
* REPUBLICANS WOULD GET BLAME FOR DHS SHUTDOWN: A new CNN poll finds:
53% of Americans would blame the Republicans in Congress if the department must shut down, while 30% would blame President Barack Obama. Another 13% say both deserve the blame.
And so, GOP leaders will probably grab on to today’s Court ruling to argue — privately — for funding the agency. The question is whether conservatives will let them.
* BOEHNER WEIGHS IN ON RULING: The House Speaker issues a statement:
The president said 22 times he did not have the authority to take the very action on immigration he eventually did, so it is no surprise that at least one court has agreed. We will continue to follow the case as it moves through the legal process. 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.
It’s very possible that a few Senate Democrats will now side with Republicans against the Dem filibuster of the House DHS funding bill. Still, even if it were to eventually pass, Obama would veto it. The question is: Will Boehner now push for clean DHS funding?
* SCOTT WALKER’S RECORD UNDER SCRUTINY: Over the weekend Reuters had a good piece examining the Wisconsin Economic Development Corporation, which was set up by Scott Walker to pul the state out of recession by relying on private sector expertise. But:
The WEDC has fallen short of its own goals by tens of thousands of jobs and failed to keep track of millions of dollars it has handed out. One reason for the agency’s disappointing performance: Walker’s overhaul of the state bureaucracy drove away seasoned development workers, economic development experts who work closely with the agency told Reuters.
Walker is enjoying a bit of a boomlet right now; the question is how well he’ll hold up once national scrutiny begins in earnest.
* AND THE TROLL OF THE DAY, WARREN-FOR-PRESIDENT FANTASY EDITION: Karl Rove trolls Democrats:
“I think Elizabeth Warren’s hard-left prescriptions on the economy sing to the heart of Democratic primary voters,” he said on “The Hugh Hewitt Show.” “So yeah, I think she could give her a run for her money. I don’t know if at the end of the day she could beat her.”
Perhaps Rove would rather Republicans face Warren than Clinton in a general election?