Newsweek
By Pema Levy
November 20, 2014
Republicans in Congress are furious that President Barack Obama is moving ahead on immigration reform without them.
Over
the past several days, Republicans have called Obama’s upcoming
executive action unconstitutional. One senator warned of “anarchy” and
“violence” breaking out, and Republican governors
are talking about suing the administration over the order.
But
in reality, the GOP’s ability to block the president’s move to give
millions of undocumented immigrants relief from deportation is limited.
Obama will give a prime-time address Thursday
night announcing his plans and offer more details Friday in Las Vegas.
Reports thus far indicate that between 4 million and 5 million
undocumented immigrants could apply for legal status and work permits
under the new order.
The
most talked about option for stopping the president’s executive action
is to defund it through the appropriations process using the power of
the purse. Several Republicans opposed to Obama’s
immigration move claim they can pass a spending bill that cuts out the
funding to enforce it.
“I’m
for sending money to fund everything except those branches that are
affected by this, then cutting off the funding to the very edict that he
will deliver,” Representative Steve King,
R-Iowa, one of the most vocal opponents of comprehensive immigration
reform in Washington, said Thursday. “We say, ‘None of the funds being
used in this act shall be used to carry out executive edict —’ and then
we define it.”
But
it’s not that simple. Obama’s action is expected to be carried out by
the U.S. Citizenship and Immigration Services (USCIS), which isn’t
funded by Congress’s annual spending bills. Instead,
it’s self-funded by application and petition fees. So how could
Congress defund something it isn’t funding in the first place?
King
doesn’t see this as an obstacle to his plan. “I have that language
already written. It says, ‘No fees either,’” King said. Rep. Tim
Huelskamp, R-Kansas, a Tea Party-style conservative
like King, didn’t know the details but insisted to reporters Thursday
that Congress’s spending authority could stop Obama. “At the end of the
day, any money spent out of the Treasury is our responsibility,” he told
reporters trying to make sense out of the
situation.
But
using appropriations bills to stop spending that doesn’t happen under
the appropriation bill is tricky, to say the least. “It would take a
change of law, an authorization of law” to change
the underlying statute, House Appropriations Committee Chairman Hal
Rogers, R-Kentucky, told reporters Thursday, throwing water on the idea
that his committee will try to block Obama through the spending process.
“It
depends to some degree on what the executive order is, and we don’t
know that yet. But if it is something that is funded by fees, defunding
doesn’t work,” Representative Mike Simpson,
R-Idaho, said Thursday.
Even
if the House figures out a way to put language into a spending bill
that prohibits USCIS from carrying out Obama’s order, either the Senate
would strip that language out or the president
would veto it, leading to a government shutdown. In a shutdown
scenario, however, USCIS would still be funded and would be able to
carry out Obama’s executive action, even as most of the government
ceases to operate.
Despite
the difficulty of the Republicans’ position, the idea of a shutdown
hasn’t been taken off the table. Simpson said he didn’t have a sense
from Republican House leaders one way or the
other on the shutdown question. A shutdown would defeat top
Republicans’ goal of proving that they can govern responsibly after the
midterms, rather than lurching from one crisis to the next.
So what other options do they have? Not many.
King
said he wanted to see the House pass a resolution denouncing the
president’s action and then vote to censure him—both symbolic moves that
wouldn’t block Obama’s order. Senator Ted Cruz,
R-Texas, a Tea Party leader and top Obama adversary, floated the idea
of refusing to confirm any of the president’s judicial or executive
appointments in the next Congress. But Republicans were largely expected
to do that regardless.
Another
option is to sue over the legality of the executive action. GOP
Governors Rick Perry of Texas, Mike Pence of Indiana and Scott Walker of
Wisconsin—all of whom are contemplating presidential
runs in 2016— have brought up the possibility of suing. House
Republicans who are already poised to sue the president over his delay
of the Affordable Care Act’s employer mandate could just tack the
immigration matter onto that suit.
But
legally the Republicans have a tough case. There is a long history of
presidents using executive authority on immigration matters, and legal
experts largely agree that the president has
wide latitude when it comes to U.S. immigration laws. Even the Supreme
Court has endorsed the idea that the president has “broad discretion” on
immigration matters. In 2012, conservative Justice Anthony Kennedy
described this power in a 5-3 opinion striking
down portions of Arizona’s extreme anti-undocumented-immigration bill.
“A
principal feature of the removal system is the broad discretion
exercised by immigration officials,” Kennedy wrote in the opinion, which
was joined by the court’s conservative chief justice,
John Roberts. “Federal officials, as an initial matter, must decide
whether it makes sense to pursue removal at all.”
Even if a judge did agree to hear the case, it could take years for anything to come of it.
There’s
always impeachment, but Republicans are not talking that up as an
option. “I think that’s been ruled out,” Huelskamp said. King likewise
downplayed the idea, evidence that the Republicans
know impeachment would turn public opinion against them.
“If
anyone suggests [impeachment], I hope they just put a bullet to my
head, ’cause that’s not a viable option either,” said Simpson, a more
moderate Republican who is in favor of passing
comprehensive reform.
There
is a final option. House Republicans could do what they have failed to
for the past year and a half and pass comprehensive immigration reform
that would replace the president’s order
with bipartisan legislation. After all, if Republicans had already
passed a comprehensive plan, Obama wouldn’t be taking action on his own.
“Pass
an immigration bill,” Simpson said, listing the possible routes
Republicans could take. Obama’s executive action will be illegal, he
said, “but ultimately we’ve got to solve the problem.
So why not just start doing it?”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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