Manu Raju and Seung Min Kim
January 21, 2015
Top Republicans are exploring ways of escaping their political jam on immigration, with steps that could avoid a funding cutoff for the Department of Homeland Security while letting conservatives vent their anger at President Barack Obama.
Among the possible Plan B’s: Republicans could pass a new bill to beef up security at the U.S.-Mexico border. They could sue to overturn Obama’s unilateral protections for millions of undocumented immigrants. Or they could pass yet another short-term DHS funding measure, giving the GOP more time to approve a strategy. Either way, Republican leaders hope to reach a deal that would allow Homeland Security funding to continue past Feb. 27, without making it appear to their right flank that they are caving to the White House.
All these options would soften the hard line the House drew last week, when it passed a DHS spending bill that would roll back Obama administration moves on immigration dating back to 2011.
A number of Republicans, led by Sen. Ted Cruz of Texas, want the GOP to take the most aggressive action possible, starting with the House bill. But Senate Republicans lack the votes to overcome a Democratic filibuster or an expected veto of the House plan — so the party’s top lawmakers hope to quickly settle on a fallback strategy.
How Republicans resolve the fight will help answer a lingering question for their new congressional majority: Will they use their new power to go toe-to-toe with the White House or pick and choose their political battles even if that risks riling up their right flank?
The battle highlights what will probably be a continuing challenge for GOP leaders — how to showcase their new strength despite lacking control of the White House and the votes to break a filibuster. Newly empowered conservatives are warning Republicans not to acquiesce to Obama by passing a “clean” funding bill that’s silent on immigration.
“We need to honor our commitments,” Cruz said in an interview Tuesday. “Republicans all over the country campaigned, saying, ‘If you give us a Republican majority in the Senate, we will stop President Obama’s illegal and unconstitutional amnesty.’ We should do exactly what we said we would do.”
But Cruz’s Texas counterpart, top GOP Senate vote counter John Cornyn, said Republicans shouldn’t focus solely on the appropriations process to fight the president. He predicted a “continual” battle with the White House over immigration even after Republicans fund the department, pointing to a Texas lawsuit challenging the constitutionality of Obama’s moves and a border security bill by Rep. Mike McCaul (R-Texas) that is moving through the House.
“It may be that it’s not always going to be the case that appropriation bills are the best way to achieve our goals,” Cornyn, the No. 2 Republican, said in an interview Tuesday.
Sen. John Thune of South Dakota, the third-ranking Senate Republican, predicted the GOP would take more of a “rifle-shot” approach against the immigration policies.
“Obviously, we want to ensure that our members have votes, where they have the opportunity to express their opposition to the president’s overreaching action,” Thune said. “In terms of what is signed into law, I think that’s a discussion that continues.”
The direction Republicans take is largely in the hands of Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker John Boehner (R-Ohio). House GOP leadership aides said their party would wait to see what the Senate can pass, while McConnell has been quiet about his preferred approach. A McConnell spokesman echoed the GOP leader’s remarks at a party retreat last week that Senate Republicans would attempt to pass the House plan.
“We’re going to try to pass it,” McConnell told reporters last week in Hershey, Pennsylvania. “That will be our first choice. And if we’re unable to do that, then we’ll let you know what comes next.”
Asked Tuesday whether a stopgap spending bill was a leading fallback option, McConnell smirked and declined to say anything.
Republicans know they lack the 60 votes to break an expected Democratic filibuster. Red-state Democrats, who have expressed concern about Obama acting alone on immigration, have almost universally panned the House approach, with some blue-state Republicans skeptical, too.
“Now that we’ve been given the majority, it would be incumbent to govern effectively — to make sure essential government functions move forward like homeland security, especially after the attack in France,” said Illinois Sen. Mark Kirk, a moderate Republican who could face a tough reelection fight in 2016.
The House earlier this month approved a plan by a 218-209 vote that would block Obama’s post-election effort to grant nearly 5 million undocumented immigrants a three-year reprieve from deportations and give them accompanying work permits. The House plan also takes aim at a 2012 directive that shielded young undocumented immigrants from being deported, while gutting a series of 2011 policies to limit deportations of people who weren’t criminals or serial immigration violators.
The House added the immigration language to a $39.7 billion DHS spending bill that would keep the agency funded past Feb. 27, until the new fiscal year starts in October.
McConnell has begun the process of bringing that bill directly to the floor, preserving his option of bypassing the Appropriations Committee. But the Senate may not have much time to plod through various options on the floor, given McConnell’s promise to allow the deliberative chamber to work its will with scores of amendment votes.
“The first order of business is to try to pass the House bill,” said Sen. John Hoeven (R-N.D.), chairman of the appropriations subcommittee that funds DHS. “But at the same time, we’re trying to get ideas from our members.”
One avenue for Senate Republicans to placate conservatives is to add language to the DHS funding measure that would toughen security along the Southern border. Legislation unveiled last week by McCaul, the House Homeland Security Committee chairman, has emerged as one way to showcase the GOP’s position on the immigration issue.
“I think the best option continues to be to do this in pieces,” said Sen. Roy Blunt (R-Mo.), a member of GOP leadership who sits on Appropriations. “Certainly, the Senate will vote on a House-passed border security bill,I believe, by the Fourth of July.”
McCaul’s bill, which will head to a markup in his committee Wednesday, would among other things require DHS to achieve “operational control” — preventing all illegal entries to the U.S. — along the entire Southern border within five years, and in high-traffic areas within two years. If DHS misses those timelines, political appointees at the department could face penalties such as a ban from using government aircraft and restrictions on bonuses and pay raises.
Homeland Security Secretary Jeh Johnson, who was on Capitol Hill on Tuesday to meet with McCaul and other key lawmakers, said he has read the Texas Republican’s legislation but declined to comment further.
But lawmakers and groups advocating for stricter immigration controls have already panned the McCaul legislation, arguing it doesn’t go far enough to address the root causes of illegal migration. It’s near-certain they will dismiss any efforts to attach that bill to DHS funding as an insufficient response to Obama’s actions.
“Unfortunately, border legislation being marked up on Wednesday in the House Homeland Security Committee again fails to include the measures necessary to fulfill its promises,” said Sen. Jeff Sessions (R-Ala.), arguing that McCaul’s legislation ensures that “large amounts of illegal immigration will continue unabated.”
Asked about the criticism Tuesday, McCaul said: “Securing the border is the No. 1 priority in my district and my state, and we’re going to get it done.”
Republicans are also looking at changing the fee structure for the agency charged with carrying out the most significant pieces of Obama’s executive actions — the U.S. Citizenship and Immigration Services, whose reliance on fees for almost all its funding presents a logistical hurdle for lawmakers looking to use appropriations as a weapon. By passing a stopgap funding bill, Republicans could have more time to develop such a plan. But that change could prompt a veto.
The other appealing option is a suit challenging Obama’s actions, GOP senators said Tuesday.
Obama’s unilateral moves already have survived one legal challenge, when a federal judge threw out a lawsuit from Arizona Sheriff Joe Arpaio and conservative legal activist Larry Klayman in December.
But a potentially bigger legal threat is a lawsuit brought by half the states, led by Texas, that argues Obama’s actions are unconstitutional. The case had a hearing last week before U.S. District Judge Andrew Hanen, a George W. Bush appointee who has criticized the administration’s policies on immigration enforcement. Hanen has not yet ruled.
“It’s possible we’ll come up with more narrowly crafted bill language that would restrict the president’s ability to enforce his executive order,” Sen. Susan Collins (R-Maine) said Tuesday. “Court action is always a possibility, too.”
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) also told reporters last week that a lawsuit initiated by lawmakers is still an option.
Still, that strategy has its detractors. Arizona Sen. Jeff Flake, a Republican advocate of comprehensive immigration reform, dismissed talk of a potential lawsuit against Obama as “kind of background noise.”
Sen. Ron Johnson, the Wisconsin Republican who chairs the main committee that oversees the department, said his panel would force the administration to detail whether it can effectively conduct background checks on the millions of immigrants who will be allowed to stay in the U.S. under the president’s policies.
Asked whether he would support the conservative push to use the funding bill to force the administration’s hand, Johnson said: “I didn’t support the defund effort because it was not possible to achieve. I’m generally focused on what the reality of the situation is.”