The lack of momentum and support for right-wing opponents to, as they put, fight the president’s executive order “now” does not stop the media from flocking to the handful of loud lawmakers who — surprise, surprise — want to take on the president and accuse fellow Republicans of being fainthearted. They can just dredge up their talking points from the 2013 shutdown escapade — and it often sounds like they have.

Unfortunately, Sen. Jeff Sessions (R-Ala.), once a serious conservative, has become so obsessed with stopping immigration that he has lost touch with political reality and the broad cross-section of the electorate, which has told pollsters they vehemently oppose a shutdown. He insisted that the GOP fight the president now, whatever that means. (As the Wall Street Journal editorial board observes, “As far as we can tell, Mr. Sessions believes that if Republicans hold firm during a shutdown, the public will eventually side with the GOP, Senate Democrats will roll over, and the President will surrender. Does this sound remotely plausible?”)

Also unfortunate is Sen. Ted Cruz (R-Tex.), who can grandstand again on a shutdown strategy on the same day he sounds tough but level-headed at a foreign policy conference discussing Iran. The former is the triumph of ego over common sense, but mostly it is the waste of a very bright intellect. This time around few are listening to his fight-fight-fight mantra, and the biggest name he could dragoon to an anti-executive action rally was Sarah Palin.

For now the House leadership is quietly building support for Rep. Tom Price’s plan to fund everything but the immigration component for the fiscal year and do only a short-term extension on the immigration piece so that when more Republicans return in January and they have control of the Senate (Mr. Cruz, do the math) they will have more leverage. A House aide not authorized to talk on the record says that members are still discussing the Price proposal that was presented Tuesday. The aide says, “We are hopeful but understand more conversations may need to be had. In the end we should be able to get it across the finish line.”

Meanwhile, something useful occurred in the fight against the president’s unilateral power grab. The Associated Press reports:

Many top Republicans have denounced Obama’s unilateral move, which was designed to spare as many as 5 million people living illegally in the United States from deportation.
But Texas Gov.-elect Greg Abbott took it a step further, filing a formal legal challenge in federal court in the Southern District of Texas. His state is joined by 16 other mostly conservative states, largely in the south and Midwest, such as Alabama, Georgia, Idaho, Indiana and the Carolinas.
The states aren’t seeking monetary damages, but instead want the courts to block Obama’s actions. . . . Under Obama’s order, announced Nov. 20, protection from deportation and the right to work will be extended to an estimated 4.1 million parents of U.S. citizens and legal permanent residents who have lived in the U.S. for at least five years and to hundreds of thousands more young people.
The lawsuit raises three objections: that Obama violated the “Take Care Clause” of the U.S. Constitution that Abbott said limits the scope of presidential power; that the federal government didn’t follow proper rulemaking procedures; and that the order will “exacerbate the humanitarian crisis along the southern border, which will affect increased state investment in law enforcement, health care and education.”

Former Bush administration lawyer John Yoo thinks the lawsuit has a decent chance of success. “I think the case should overcome the main barrier of standing, if the Supreme Court is to be taken at its word in the Massachusetts v. EPA case,” he said, referring to precedent that allows states to sue for burdensome costs imposed by illegitimate federal action. “On the merits, President Obama is on weak constitutional ground because he is refusing to carry out his constitutional duty to enforce the laws, though what the Supreme Court will do is always unpredictable.” Yoo adds, “It shouldn’t relieve congressional opponents from seeking to pass legislation on immigration reform while also pushing back on Obama’s misuse of his domestic powers.”

In response to the lawsuit, Price released a statement late Wednesday, praising the legal action and urging members to “pursue realistic avenues to hold the Obama Administration accountable. We have an obligation to protect and defend the rule of law enshrined in our Constitution and with it the voices of the American people we represent. By stepping forward, these states are providing crucial leadership and support at this critical time.”

He is right in that Republican governors certainly sounded responsible and informed, unlike the grandstanding GOP lawmakers.

In a statement accompanying Indiana’s announced decision to join the suit, Republican Gov. Mike Pence released a statement that read, in part: “While reasonable people can differ on ways to improve our nation’s broken immigration system, the President’s unilateral action was an unacceptable end run around the democratic process and joining other states in pursuing legal recourse to challenge this action is the right thing to do. This lawsuit is not about immigration. It is about denying states such as ours the opportunity to be represented in policy making through our elected members of Congress.” That strikes the right tone and keeps the GOP focused on the legal issue, unlike the anti-immigration reform crowd that seeks to convince Americans that these people (already here for five years) are going to take their jobs.

Outgoing Texas Gov. Rick Perry went one step further, announcing  an order telling state agencies to use E-Verify to check the employment eligibility of current and prospective employees. He also called for Congress to “finally pass a bill that dedicates the necessary resources to securing our border, once and for all. Without border security, immigration reform is a fruitless exercise.”

The far right has lost influence and mojo in the wake of the shutdown and bruising losses in midterm primaries. They can get the attention of the press, but do little else. Meanwhile, between GOP House leadership and governors, the GOP may escape from the trap set by Obama relatively unscathed.