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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, December 11, 2014

Government Shutdown Would Not Stop Obama on Immigration

The Hill
By Scott Wong
December 11, 2014

Even if Republicans shut down the Department of Homeland Security (DHS) next year, President Obama could still carry out his executive actions giving legal status to up to 5 million undocumented immigrants.

Speaker John Boehner (R-Ohio) and other GOP leaders have punted the funding fight over Obama’s immigration action to February, arguing their new majority will have more leverage to stop the plan dead in its tracks.

But it’s unclear how much weight the threat of withholding funding would carry. Eighty-five percent of DHS employees continued to work during last year’s 16-day shutdown because they were funded with mandatory funds or deemed “essential” to national security or public safety, according to figures the Congressional Research Service (CRS) tracked down for GOP lawmakers.

Only 15 percent of DHS employees were furloughed in last year’s shutdown, the CRS found. On top of that, some 90 percent of the department’s U.S. Citizenship and Immigration Services (USCIS), the agency key to implementing Obama’s executive action, continued operating.

Some rank-and-file Republicans are worried that Obama could declare all DHS workers “essential” and keep them on the job — then simply pay them once a funding deal is reached.

They say fellow Republicans should be under no illusion that the “cromnibus” coming up for a vote in the House on Thursday would put Republicans in a stronger negotiating position next year. The $1.1 trillion bill would fund nearly all of the federal government through September 2015, but would only fund the DHS through Feb. 27.

“People will vote for [the funding package] and feel that they may have some real advantage in February, but it may not happen that way,” one House Republican who has studied the CRS figures told The Hill.

Added Rep. Trent Franks (R-Ariz.), whose state has become ground zero in the immigration fight: “If we are only talking about affecting 15 percent of the non-essential DHS employees, along with a president that thumbs his nose at the Constitution before he eats breakfast, it’s a real challenge.”

Because of the difficulty in stopping Obama, these lawmakers say, Republicans in the House and Senate should quickly pass a series of immigration bills once the new Congress is sworn in on Jan. 6.

House Homeland Security Committee Chairman Michael McCaul (R-Texas) has been drafting a border security bill that would boost resources, but also better match them with specific needs in various sectors of the southern border. It should be ready by the beginning of the year, according to aides.

Boehner and his leadership team spent Wednesday rallying support for the bipartisan cromnibus both in a closed-door GOP caucus meeting and at a press conference. Leaders argued that delaying the immigration fight by another month gives Republicans a better shot at combating Obama’s immigration move.

By then, they’ll have control of the Senate and a larger majority in the House.

“If you’re gonna start a bar fight, start it when you’ve got as many friends in the bar as you can possibly have. Why would you start it now?” Rep. Tom Cole (R-Okla.), a close Boehner ally, told The Hill on Wednesday.

A GOP leadership aide rejected the concerns from rank-and-file Republicans, insisting that the party has an “array of legislative and legal options” they will pursue next year to stop the president. The aide declined to specify what those options are.

Rep. John Culberson (R-Texas), a top House appropriator, expressed confidence Republicans could take up legislation to target and defund Obama’s executive action in the new year. He cast aside concerns from some fellow Republicans that the USCIS is funded through fees rather than congressional appropriations, saying all of the agency’s money “has to come through Congress, has to come through the Appropriations Committee.”

“With reinforcements coming over the hill in January, I’m really optimistic we’ll be able to stop [Obama],” Culberson, an incoming Appropriations subcommittee chairman, said in an interview.

But there’s one catch: any bills Republicans pass to block Obama’s immigration action are sure to meet a presidential veto. And if Republicans refuse to fund the DHS at the end of February, DHS Secretary Jeh Johnson would have wide discretion in deciding which of his nearly quarter million employees should be deemed “essential.”

Administration officials who managed the 2013 shutdown said each agency was required to draft a shutdown plan that identified “essential” workers, submit it to White House budget officials and post it online. In some cases, congressional appropriators weighed in and questioned the need for certain essential employees, prompting agencies to revise their plans.

But appropriators were not asked to officially sign off on the shutdown blueprints, sources said. And agencies decided on a day-to-day basis whether furloughed employees should be called back to work or essential employees should be furloughed.

A White House spokeswoman declined to comment for this story.

Conservatives such as Rep. Tim Huelskamp (Kan.) have argued that the time to fight Obama’s immigration action is now, with the deadline looming to fund the entire government.

Delaying the fight until January will be too little, too late, he said.

To comply with Obama’s immigration action, U.S. Immigration and Customs Enforcement officials said this week they had released more than 180 undocumented immigrants from detention facilities across the country. And Huelskamp said the DHS has already begun hiring employees to process work permits for immigrants covered under the new action.

“I and others have asked leadership, ‘If you don’t want to do anything about it now, tell us exactly how are you going to do it [next year],’ ” Huelskamp told The Hill. “They have not identified any strategy to deal with it, other to say we’ll deal with it later.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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