Explaining the Showdown Over DHS and Immigration

Wall Street Journal

March 2, 2015

Explaining the Showdown Over DHS and Immigration 

For weeks, Congress has been wrestling over legislation to fund the Department of Homeland Security, with lawmakers divided over whether to use the bill to try to block President Barack Obama’s executive action on immigration. After a number of down-to-the wire twists and turns and high drama in the House last week, the stalemate continues into this week. Here are some basics.

How did we get to this point? Why is it possible that the Homeland Security Department would not be funded?

At the end of last year, when lawmakers were working on appropriations bills for fiscal year 2015, many Republicans wanted Congress to try to use the spending bills block the immigration action. They decided to fund most of the government through the fiscal year, which ends Sept. 30, but put a Feb. 27 expiration date on the bill funding the Department of Homeland Security, on the theory that after Republicans took control of Congress in January, they could use the DHS funding bill as a vehicle to block the action.

The Homeland Security bill was broken out for this purpose because it contains the agency that oversees immigration. (For really close followers of Congress, this bill was known as the “cromnibus,” because most of the government was funded with an omnibus appropriations bill, but homeland security was funded with a partial-year bill known as a continuing resolution, or CR. The cromnibus combines the CR for homeland security and the omnibus for the rest of the government).

Remind me what Obama's executive action did.

The action offers some four million illegal immigrants who qualify the chance to apply for “deferred action,” which gives a temporary reprieve from deportation and the ability to apply for work permits. To be eligible, people must have been in the U.S. for at least five years, have a child who is a U.S. citizen or legal permanent resident, and not fall into a priority group for deportation. The action also expanded criteria for a similar 2012 program for young people brought to the U.S. as children. It also defines who is a priority for deportation and makes minor changes to the legal immigration system. Republicans are opposed to this and officials from largely Republican states have filed a lawsuit to block it.  On Feb. 16, a Texas federal judge blocked the administration from proceeding with the plans, and the administration last week asked the judge to allow the plan to go forward while the case.

So when Republicans took over Congress, couldn’t they just vote to block it?

Sounds easier than it is. The House, led by Speaker John Boehner (R., Ohio), indeed passed a bill in January to both fund the department and block the executive action. The Republican Senate, led by Majority leader Mitch McConnell (R., Ky.)  tried several times to pass the bill, but Democrats in the Senate blocked it. In the Senate, a bill must win 60 votes to get past procedural hurdles, and there are 54 Republican senators. So the two chambers were stuck on this issue, right up until the deadline on Friday. On that final day, Mr. McConnell agreed to bring to a vote a “clean” bill that didn’t include the immigration language. It passed 68-31, again leaving the two chambers at odds.

So how did they get around the Friday midnight deadline?

In the final hours before the deadline, the House and Senate passed a continuing resolution to fund the department for one week.

Only one week?

Here’s where Friday got dramatic.  Mr. Boehner tried to do a three-week bill, with the idea that the next three weeks would buy time for negotiations – or possibly for the court case to provide some clarity. But it turned out he didn’t have the votes to do even a three-week measure. Fifty-two Republicans, the most conservative members of the conference, voted against it because it did not block the executive action. And most Democrats held firm against it, too, meaning the bill was rejected. It was a big blow to Mr. Boehner because it showed he could not corral the votes necessary even to do a temporary bill, which leaders sometimes need to buy time to get past critical deadlines.

Both sides agreed, however, to a one-week patch, just to keep the department funded into this week and avoid the embarrassment of having homeland security unfunded during the visit of Israeli Prime Minister Benjamin Netanyahu, who’s speaking to Congress on Tuesday.

So what happens in the next week?

There are several possible outcomes.

Many lawmakers believe the House GOP leadership will eventually go along with the Senate plan to fund the department through 2015 without the immigration language. If the same 52 Republicans voted against it, it would require some Democratic votes (the House has 245 Republicans, and 188 Democrats, with two vacancies). In doing so, Mr. Boehner would anger that wing of his party, but the alternatives could be worse.

Another option is that the House bill passed in January with the immigration-blocking language and the Senate bill without it would go to a conference committee. But going to conference would require Senate approval, and the Senate isn’t likely to have the votes for that, as Democrats are insisting on the scenario laid out above.

Or, the Homeland Security Department could go unfunded as of this Friday at midnight. Most lawmakers do not think that will happen, and if it did, roughly 85% of the department’s 226,000 or so employees would still have to show up for work.

Or, there might be another scenario we haven’t thought of yet. This is Congress, after all.

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