GOP Options In Response To Obama’s Executive Action Are Limited, Perhaps Non-Existent
In the end, there appears to be very little, if anything, the GOP can do to stop or roll back the executive actions the President will announce Thursday evening.
Later today, President Obama will announce the actions he intends to take via “executive action,” which is likely to mean to refer to a variety of actions from a formal Executive Order to more mundane methods of executive branch enforcement power such as regulations issued by the Department of Homeland Security and other agencies, regarding the nation’s immigration’s laws. Based on reporting this week it appears likely that the actions involved will include providing temporary relief from deportation for children who were brought to teh United States illegally who were not covered by 2012’s Deferred Action for Childhood Arrivals program, some of the parents of those covered by DACA, and the parents of children who were born in the United States and are thereby American citizens by birth. As already noted, the possibility of such an announcement has already aroused much ire on Capitol Hill among Republicans, and polling seems to indicate that the American public is, at the very least, highly skeptical of the propriety of such unilateral action by the President. As a result, Republicans have reacted by threatening everything from government shutdowns, to lawsuits by either the House of Representatives or individual states, to Ted Cruz’s pronouncement that Republicans should refuse to confirm any Obama nominee as long as the President’s policy is in effect.
In reality, though, Republicans appear to have a very limited, and perhaps even largely ineffectual set of options in fighting back against the President here:
Republicans’ options to rebut President Obama’s expected executive order on immigration are narrowing, as leaders remain under pressure by some in their caucus to limit his ability to give work permits to undocumented immigrants.
Speaker John Boehner and his team said they are considering all avenues to limit the scope of Obama’s order, which he is expected to announce Thursday night at the White House. Those include an amendment to a funding bill blocking the government from spending money or resources to enact the order, a bill next year that would retroactively block the funding or targeting the order in a lawsuit being initiated against Obama.
Yet party leaders said Thursday that none of the options are ideal.
Appropriations Committee Chairman Harold Rogers, who has been trying to construct an omnibus appropriations bill that would continue funding the government into next year, said that a spending amendment could not target the funds needed to carry out the executive order.
“To alter or change the fee matter, it would take a change of law,” he said.
U.S. Citizenship and Immigration Services, the agency within the Homeland Security Department most likely responsible for enacting Obama’s order, is largely funded through application and petition fees. Congress doesn’t appropriate any funds to the agency, according to Jennifer Hing, Rogers’s spokeswoman.
“It would be impossible to defund anything on an appropriations bill if we, in the first place, provide no funds for that agency,” Hing said.
What this means is that defunding Obama’s executive action isn’t as easy as adding such language to a short-term or long-term spending package. The underlying statute could be changed, but that would necessitate an authorization bill, and this has been communicated to leadership, Hing said.
(…)
If Republicans decline to use the appropriations process to block Obama, they could wait until next year and attach a provision to a non-appropriations bill that would limit funds to enact the order.
But that option, referred to as rescission, is not ideal either, Ross said. Even next year when Republicans control the Senate, they will not have a filibuster proof 60-vote majority to pass a bill targeting the executive action. Furthermore, the president would almost certainly not sign any bill rolling back his order.
As for a lawsuit, that idea suffers from many of the problems I’ve discussed before:
it would be “very difficult” for the House—or another challenger—to successfully press a case against Obama’s immigration actions on deportation enforcement, said John Malcolm, director of The Heritage Foundation’s Center for Legal and Judicial Studies.
The main problem is the legal question of standing, or who has been injured by Obama’ s policy change and can bring a lawsuit. That issue has already stopped a legal challenge brought by border agents to Obama’s similar 2012 immigration action, and it looms over any other suit lodged by a member of Congress.
“Coming up with a plaintiff who would be able to show an injury is not an easy thing to do in this context,” Malcolm said. “I think there will be people who want to challenge it. I don’t know who would challenge it, and what their chances of success will be.”
(…)
Even if the House could establish its right to bring Obama to court over his policies, the courts have long given great deference to the executive branch on immigration. That includes the president’s decisions about how to allocate resources among competing priorities.
Obama casts his authority to end deportations for millions of illegal immigrants as “prosecutorial discretion ” on enforcement of the immigration laws, and not a change in the law itself. That falls in line with those previous court rulings. Republicans say he has stretched that discretion so far as to step into congressional powers to make laws.
Justice Department lawyers have seized upon language in a Supreme Court ruling from just two years ago that some legal experts say endorses Obama’s actions when it comes to what the high court called immigration “policy choices that bear on this nation’s international relations.”
In Texas, a federal district court judge tossed out a lawsuit challenging Obama’s immigration action in 2012, finding that federal immigration officers and the state of Mississippi do not have standing to challenge the policy. The case is now pending at the U.S. Court of Appeals for the 5th Circuit, and could eventually be appealed to the Supreme Court.
The officers want to stop a June 2012 administration action that halted deportations of so-called “Dreamers,” illegal immigrants who were brought to the United States as young children.
Another challenger with standing seems unlikely. “The problem is the president is not taking anything away from these people, he is giving stuff to them,” Malcolm said. “You need to find somebody who has the ability to come forward and say, ‘I have suffered an injury because of this.'”
Whether its effectual or not, it seems clear that Congressional Republicans are likely going to be forced by their own base to do something to respond to the President’s action here. There will be strongly worded speeches made, of course, and the conservative blogosphere, news media, and talk radio will likely be pushing the idea that the party has to stand up to the President’s “illegal” actions for the sake of the Constitution. When all is said and done, though, Republicans are going to find themselves at the same crossroads they are at right now. Fighting the President with the power of the purse may not even be possible since the programs that would be most effected by the action he will take are, as a matter of law, self-funding and stopping the offices responsible for processing the applications in question from accepting any finds related to the relief the President grants would require legislation that probably would not achieve the 60 vote threshold needed in the Senate and, even if it did, would be vetoed by the President under circumstances where Congress would be unable to override the veto. Similarly, a lawsuit either by the House of Representatives or by any of the individual states would run into the same Article III standing and Political Question issues that I’ve discussed before in connection with the proposed House lawsuit over the extension of certain deadlines in the Affordable Care Act. At the very least, a lawsuit is something that would drag on for years and likely not be resolved by the time President Obama leaves office.
Another factor that Republicans will need to consider, of course, is how the public ends up reacting to the President’s policy initiative. Two recent polls, from USA Today and NBC News/The Wall Street Journal do show a plurality opposed to the idea of unilateral executive action, but they also show public support for broader immigration reform and for the idea of the President and Congress working together to fix an obviously broken immigration system. Furthermore, a plurality is not a majority and the fact that the number of people who oppose the idea of executive action in principle is below 50% right now is likely encouraging to the political advisers inside the White House. Additionally, it’s possible that if the public finds itself supportive of the substance of the President’s policies, that they will let the fact that it was done unilaterally slide by as a non-factor, in which case the burden will shift to Republicans who arguably could end up trying to undo a policy that the American public largely supports, while at the same time failing to to act on immigration reform itself as the American public clearly favors. As I’ve mentioned, this may be the political calculus the White House is operating under, and I can’t say that they’re wrong in making the guess that they’ll win this war for public opinion in the end, even though it’s pretty clear that they are most assuredly taking some big political risks in proceeding down the executive action path.
As for Republicans, they are going to be faced at some point with the choice of continuing with options that are unlikely to do anything to stop the President from going forward with the policy he announces tonight, or even taking the more radical and insane path down the road to impeachment, and addressing the immigration issue head on by seriously considering a comprehensive immigration reform bill. Given their history on this issue, it seems unlikely they are going to take up that option without some sign that they will actually suffer politically for not acting. Thanks to the election results this month, it will be hard to persuade them that they will suffer politically if they pursue a confrontational rather than a cooperative course on this issue, or any other issue for that matter. So, rather than a Republican immigration bill I would expect we’ll see ineffectual efforts to dismantle the action the President announces tonight, along with rhetoric about the Imperial Presidency that would be refreshing but for the fact that such arguments were exceedingly lacking when President Obama’s predecessor was in office and increasing the power of the Presidency through executive action, signing statements, and unilateral action in the name of the “War On Terror.” In other words, more of the same as we head toward 2016, which may or may not be the point at which Republicans finally learn that ignoring the Latino vote in this manner is something they simply cannot afford to do anymore.
Let’s see. A few weeks out from the greatest Republican election victory in a decade, Obama has the GOP leadership and rank & file working against each other, and the response to a move Obama has not even made yet looks:
A. Utterly ineffectual
B. Batshit crazy
C. Both
How is the big win working out for you guys so far?
Here is the reason why the Republican leadership really hates the President’s action:
The President is doing here what he should have done a long time ago-he’s changing the game and fighting on a battlefield and on terms favorable to him. The Republican problem is that they are used to opposing a President that that limited himself in ways that made it easy to beat him and block his efforts. Well, shoe is on the other foot, now.
I love that they threaten to do everything but their jobs. That’s the GOP. Lots of threats, lots of rage, no plan.
I don’t know why Republicans would be afraid of a shutdown 2 years from the next election. The last one had absolutely zero consequences for them. From Ted Cruz’ point of view, it looks like a winning tactic.
This is an impeachable offense but they’re not going to impeach over it. While hardly unprecedented—even on the immigration issue—it’s the Congress’ job to set policy and the president’s to execute the law. Yes, that comes with discretion. But, no, flouting a recent law like this isn’t reasonable exercise of said discretion.
But the politics mitigate against impeachment. First, the public generally thinks presidents have the power to do pretty much anything, so they won’t see this as that big a deal. Second, as you’ve noted, Republicans themselves are sharply divided on this issue on policy grounds. Third, it would be portrayed by Democrats as anti-Hispanic and further harm Republican efforts to win back more of that crucial demographic.
@James Joyner:
I’m not so sure about that. I want to see the details and the Administration’s legal justification, which apparently will be released tonight or tomorrow as well, along with input from some experts before making that judgment.
On the surface this sounds like it will be similar to DACA, and I don’t know of anyone who’s arguing that DACA was outside of the discretion granted by Congress to the Executive Branch.
@James Joyner:
We already have one Congresscritter calling for impeachment and for jail time:
“”At some point, you have to evaluate whether the president’s conduct aids or abets, encourages, or entices foreigners to unlawfully cross into the United States,” Brooks said in an interview with Slate. “That has a five-year in-jail penalty associated with it.””
@James Joyner:
Er, what law are we talking about?
@Moosebreath:
Coburn is going beyond that to talk violence.
The Republicans are apparently really, really working themselves into a lather over this.Guess Obama is just being too uppity for his own good.
@James Joyner:
I’m afraid we are going to need a bit more detail here. How is the President committing an impeachable offense? Please be specific.
@James Joyner:
Current law forces this exercise of discretion, does it not? There simply aren’t enough funds appropriated to deport all the people the law states should be deported.
It’s not impeachable, that’s nonsense. There’s direct precedent as Doug points out, and thousands of cases of indirect precedent in laws that are selectively enforced. But hey, the GOP has wanted a lynching since 2008 so let’s do this.
@Doug Mataconis: @stonetools: @michael reynolds: I think it’s debatable whether refusing to apprehend and deport millions of people here illegally is within the president’s discretionary power. I don’t see how he possibly has the authority to issue millions of work visas in direct violation of existing law.
Most of the precedents I’ve seen cited even for the former were in areas where there was a loophole in the language and the president was in effect carrying out the spirit but not the letter of the law. Here, he’s taking action the opposite of the letter and intent of the law. That should trouble people, even those who support the policy outcome. Which, by the way, I largely do.
@James Joyner:
My understanding is that the granting of the work permit is something that ends up becoming automatic once the temporary status is granted. If that’s the case, and the authority exists to grant temporary relief from deportation then you have a direct line to the work permit. That’s what happened with DACA, for example. It’s kind of hard to comment on the legality without knowing the details, of course, which is why I’m still withholding judgment.. That being said, I am not a fan of the President acting like this. This ought to be something Congress does.
Aside from the legalities, of course, the other important question is how this plays out politically. I can see it playing out to either party’s benefit at this point depending on how the public reacts, and honestly I was kind of surprised that pre-announcement polling was so close on the “unilateral action” question.
@michael reynolds: The constitution was intentionally very vague about what “high crimes and misdemeanors” means, so that everything is potentially an impeachable offense, from murder to eating a peach.
Gerald Ford declared “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history”, and he was probably right.
If impeached for eating a peach, what recourse does the President have? Nixon (not that Nixon) v. United States had the Supreme Court ruling unanimously that “courts may not review the impeachment and trial of a federal officer because the Constitution reserves that function to a coordinate political branch” (quoting Wikipedia, not the case itself).
Now, surely if the House actually did impeach the President for eating a peach (or some equally trivial offense), there would be a political price to pay for that. And, in the case of eating a peach, the Supreme Court might find that they actually do have a role to play, but they have been very reluctant to get involved in the past.
Issuing an executive order is somewhere between eating a peach and murder. So, bring on the impeachment!
@michael reynolds:
Impeachable offense, lynchable offense…potato, potahto.
@James Joyner:
Who has suggested the president plans to issue ten, much less millions of work visas?
Not deporting an individual is not the same as giving them a work visa. We have tens of thousands of people in country now who entered illegally yet are legally allowed to stay in the country as their cases are awaiting EOIR action.
Mr. Boehner can make this all go away in an afternoon: pass the Senate bill. Easy peasy.
Keep in mind the Emancipation Proclamation by Lincoln was an executive order.
We’ve been here before, not so many years ag0.
Republicans can impeach the president for anything they want, there does not have to be a misdemeanor or a crime. The can draw up articles of impeachment and dress it up with language that alleges criminal behavior and so forth. They have the votes to impeach, but not to convict. Right now, I think Vegas would give odds of about a 27% chance that the Republican House will get started on this soon.
Bring it on.
@Ron Beasley:
Keep in mind the Emancipation Proclamation only freed slaves in territory that was in rebellion and not under effective federal troop control, i.e., territory beyond the reach of Congress. Lincoln did not free slaves that were within the jurisdiction of the functioning federal government.
There. Right there. That’s the twinkle in Mitch McConnell’s eye. 🙂
Otherwise, I like Scott F.‘s reasoning best.
@Gustopher: One of the articles of impeachment against Andrew Johnson (though not the main one) was that he was drunk at his inauguration. That surely falls into the “eating a peach” category.
I agree that there are presidential actions where it is ambiguous and debatable whether they constitute high crimes or misdemeanors. (Also, it’s far from clear that the Constitution was saying any high crime or misdemeanor is automatically an impeachable offense. The clause refers to “bribery, treason, and other high crimes and misdemeanors”–the fact that it bothers to cite a couple of examples suggests it was talking about high crimes of particular severity, not all high crimes.) But that doesn’t mean anything can be reasonably defined as a high crime or misdemeanor. Eating a peach definitely is not–and yet the Constitution still gives Congress the power to impeach over it. The clause is basically doing two things: explaining what presidents should be impeached for, and then giving Congress the absolute authority to decide for themselves. So yes, Ford was right, an impeachable offense is whatever Congress decides it is, but that doesn’t mean they aren’t abusing this power by stretching the definition beyond its rational limit.
Well, it doesn’t address the immediate matter and may not be popular with the old bastards in Congress of either party, but If I was new or near-new Congressman or Senator, I’d respond by building a coalition dedicated to revisiting all executive branch authorizing legislation with the aim to claw back the Congressional authority wrongly delegated over the last century. The agencies will still have their mission but no longer carte blanche authority to act without Congress.
It could frame the debate for a generation or two and really ignore those political activists and scientists who are enamored with the technocracy. Even if it became tilting at windmills, it would be fight to keep alive just to keep the public questioning the regulatory state.
Oh ok. Yeah, that doesn’t change Ron’s point at all.
@JKB:
Neither party wants to do that. With power comes responsibility; with responsibility come actions; with actions come the possibility of annoying voters and cutting into campaign money.
@James Joyner:
Why don’t we give the president a chance to actually detail what he plans to do before we proclaim it’s an impeachable offense James.
Stop whining … Pass a bill
@JKB:
I realize conservatives think government is genetically prodigal, but don’t you realize just how much more inefficient it’ll get if Congress actually does this?
Of course I do.
The federal government was never suppose to be city hall.
@JKB:
What would motivate the very institution that has thrown its rights and responsibilities away to suddenly decide to claw them back?
@James Joyner:
And I think we all agree that if the Congress had been doing their job, the President would not even be contemplating this sort of action. At some point, you have to run the country even if the legislature has abdicated.
@JKB:
If I knew what that was supposed to mean, I would probably disagree with it.
Taking a wild guess at where you’re going with that, it seems to me that immigration policy and citizenship are issues that are not best devolved to the states or lower.
That’s about all that you, your fellow travelers, and the GOP can do about this so please tilt away…
The Irony Is… Central American Latinos Fled Tinpot Dictators!
@DrDaveT:
@Jack:
I know! Which is why they are totally going to hate this action.
Right?
@michael reynolds: A lynching.
You are despicable.
@Liberal With Attitude: Lynching again.
You too are despicable.
@charles austin:
It’s what you’ve wanted since day one.
@michael reynolds: You sir do not know me. But I know you and the people who endorse your hateful, spiteful rhetoric.
@James Joyner:
I will refer you to Gerald Ford’s definition: “an impeachable offense if whatever the House of Representatives says it is.”
Anything that can get 270/whatever votes is an impeachable offense–including spitting in the Rose Garden.
@michael reynolds: My entire professional life I’ve had two pictures in my office of people other than my family. They are pictures of Abraham Lincoln and Dr. Martin Luther King. So fuck you.
I will not longer stand quietly and absorb the vile insults of cretins like you who demean and discredit everyone who doesn’t toe your ideological line.
Nice site you had Dr. Joyner.
@JKB:
So, once again the answer is to make the federal government less efficient, then we can say that the federal government can’t do anything because it is so inefficient. It’s sort of the opposite of a perpetual motion machine.
The Irony Is… Central American Latinos Fled Tinpot Dictators !
@michael reynolds: They should be used to dictatorial decisions by now. What’s one more by Obama?
@charles austin:
Your party, Charles, welcomed the nation’s first African-American president by accusing him of not being an American citizen. That was their reaction: howling, “show us the birth certificate!” So spare us the bullsh!t.
@Jack:
Gosh, that makes even less sense than your first unoriginal sally. Things you plagiarize from The Last Refuge seldom survive exposure to the world outside the echo chamber.
@charles austin:
Lol. It’s funny, down here in Florida I see “Annoy Liberals” bumper stickers but not the reverse. Hateful, spiteful… look in the mirror. Oh, and add petty, small, and ignorant to that list, too.
@JKB: You should be running for office. But, the cynic in me finds himself believing that if you won, you wouldn’t actually do any of that, you’d just go along to get along so that you could collect your pension in 2 years.
@charles austin: Gee, I dunno…I have no problem with the metaphor at all. Does that make me despicable, too?
I do want to note one sweet little political effect: not the obvious fact that an unhinged GOP reaction will weld the Latino vote to the Democratic Party for the next 20 years, but a sort of bank shot, a knock-on. The crazier the GOP gets on immigration, the less likely they are to nominate Jeb Bush – a candidate who concerns me as a Democrat. They may well get themselves so worked up over this it pushes the real nuts back to the fore. This is like a gift to Hillary.
I don’t think conservatives have thought through the ways this can come back to haunt them in 2016.
But that’s the problem with crazy. The delusional belief system sends logic straight into the crapper.
@michael reynolds:
The demands of the base should keep Jeb busy undoing what separates him from the rest of the pack:
https://twitter.com/JebBush/status/535624821108113408
Legal Scholars: Obama’s Immigration Actions Lawful
https://twitter.com/michaelscherer/status/535608325657100288
https://twitter.com/michaelscherer/status/535608781850558464
https://twitter.com/michaelscherer/status/535617122198880256
https://twitter.com/kasie/status/535607414952034304
@James Joyner:
I’m thinking you should worry about what Hispanics think, not how anything is “portrayed.” Or are they not bright enough to know where their best interests lie?
Amnesty and immigration reform is going to be a good example of what the future of politics is gong to look like. Elections are irrelevant. Public Opinin is irrelevant. Initiative and referendum are irrelevant. The ruling class (the fixers and clouts) have decided what they want and there is nothing anyone can go about it.
I assume that the Democratic Party brain trust has looked at the last election results and noticed that the wave election did not effect California due to the demographics of California. Now the Democrats are pursuing a policy of making the rest of the country like California.
This policy shows that the Democrats are pursung a policy where fixers like Valerie Jarrett deliver for the Oligarchs and the Patron Class while the current middle class slides into the Peon class.
@charles austin: I await your denouncing of Kris Kobachs threats of “ethnic cleansing” with bated breath.
idiot.
@superdestroyer:
You can’t call an election with the lowest turnout since WW2, and overwhelmingly old and white a wave election.
You can call it a Fox News election…but not a wave election.
@C. Clavin:
Once again,to a progressive, elections are irrelevant. When progressives lose elections, they immediately find a way to claim that the election is irrelevant and they should still get whatever they want. it will be interesting to see progressives reaction in the future when they finally get the demographics that they desire but not the outcomes that they anticipate.
@superdestroyer:
“When progressives lose elections, they immediately find a way to claim that the election is irrelevant and they should still get whatever they want”
Sort of like how the Republicans lost in 2012, and yet shut down the government the next year because they did not get what they wanted?
@superdestroyer:
We had no Senatorial elections because neither of ours was up. We re-elected Jerry Brown with 67% of the vote because, obviously, we’re rather pleased with his performance. The rest of the country wishes they had what we have. California is rich, important, alive, creative and beautiful. Despite a terrible drought our unemployment rate is dropping steadily, our books are balanced – no help from the GOP – and it’s even started raining.
Best state in the country, and I can’t even imagine who’s in second place.
@James Joyner:
Congress has not appropriated or provided sufficient resources to deport any more than 400,000 people per year. And every dollar spent deporting non-harmful aliens is taken away from securing the border.
So, no, refusing to engage in an impossibility is not an impeachable offense.
Jeebus, you’re normally much smarter than this.
@michael reynolds:
Then why are the total number of whites living in California going down and has been going down for many years. California is a great place to be part of the patron class. However, California is a lousy place to be in the peon class.
@Moosebreath:
More like when Reagan has re-elected in 1994 and Tip O.Neill said that the result did not change anything. Also, very much like the Democrats shutting down the government in 1990 during the first Gulf War build-up. However, at least at that shut down, the Democrats got what they wanted: increased taxes today for a promise of spending cuts in the future that will never really occur.
@superdestroyer:
“More like when Reagan has re-elected in 1994”
I’ll assume that’s a typo.
Also, in the Congress which ensued after Reagan’s reelection, much legislation passed on a bi-partisan basis, most notably the 1986 Tax Reform Act and the idiocy known as the Gramm-Rudman-Hollings Balanced Budget Act. So in other words, much like, except entirely different.
@michael reynolds: I’m not a Republican. But then again, reading comprehension isn’t your strong suit.
@charles austin:
Riiiiight.
@OzarkHillbilly: I don’t even know who he is. I do not engage in the petty game of having to check off whatever boxes you think I need to check off as a way to waste my time and put me in a box you choose to define. I believe my sentiments on equality are rather clear and in general concurrence with almost everyone here even if we may disagree with how we achieve those goals. How that gets twisted into I want to lynch the first black president should really get some of you examining your assumptions.
Seriously, what in the hell is wrong with progressives if this where your path takes you?
Have a nice life. Sorry for the inconvenience.
@charles austin:
Neither is Doug!
Gotta love plausible deniability! Sort of like how oral sex isn’t really sex!
@charles austin:
Oh, so close to being plausible. Just one problem.
My initial statement: But hey, the GOP has wanted a lynching since 2008 so let’s do this.
Your response: You are despicable.
So, that’s not you defending yourself, that’s you defending Republicans. Which you say you’re not. And yet you apparently know enough about Republicans to somehow be sure they’re not interested in a lynching.
So, I say: It’s what you’ve wanted since day one.
Meaning “you” as Republicans. And I point out just one piece of evidence among many possibilities.
To which you respond: I’m not a Republican. But then again, reading comprehension isn’t your strong suit.
So, you’d have it that I was mis-reading your impassioned defense of Republicans as being a defense of yourself. You’d have it that you accused me and one other person of being “despicable” because you are, what, just concerned as a disinterested observer with mis-characterization of the GOP?
Like I said: Riiiiight.