Feb 15 2015

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DHS Funding and the GOP

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Illegal but Hard to Reverse...

Illegal but Hard to Reverse…

Mitch McConnell must be wondering whether the job was really worth the all the effort last year.

Only six weeks into his new post as Majority Leader in the Senate, and one of McConnell’s first promises to the nation – that a Republican Congress would get out of the business of shutting down the government – is, barring further action, 12 days from being broken; at least in part.

With united control of Congress, the GOP has been itching to take on the President over his illegal Executive Order (EO) from November, providing de facto amnesty for up to five million illegal immigrants. Last year, the GOP provided only temporary funding for the Department of Homeland Security (DHS) – through February 27th – so that they would have a legislative vehicle to challenge POTUS.

Things went well enough in the House, where Republicans hold a 27 seat majority. A bill that specifically prevents implementation of the President’s EO passed by 18 votes, even with the defection of 10 Republicans.  But from here, the simple math of government  has again cofounded Republican attempts to undo President Obama’s aggressive unilateralism.

To get a bill approved by the Senate requires 60 votes. Republicans have 54. The Democratic minority – no matter the possible personal preferences of its caucus members – has decided to circle the wagons against the GOP on this issue. Politically, the Democrats up for re-election in ’16 are – with an exception or two – from safely blue states where the President’s EO is actually popular.  There is little downside for Harry Reid’s team.

But even if the McConnell were to somehow find the six votes, the DHS bill would be dead on arrival on the President’s desk. He would most certainly veto it.  To override that veto, 2/3rds of both houses of Congress must vote to override the veto to make the bill law.  That’s 287 votes in the House and 67 in the Senate.

No basis for those majorities exist.

But math has very rarely gotten in the way of House Republicans. Despite McConnell saying that there is absolutely no way he can pass the House bill with the provisions related to the EO, John Boehner and his colleagues blithely stated that they had done their job, and it was up to the Senate to take care of its own business, as if the House is somehow not intricately complicit in what comes next.

In House Republican-land, a failure to pass a DHS appropriations bill will riders to strip out POTUS’ EO is not the GOP shutting down the agency that protects us from domestic terrorism, but rather the latest expression of wonton tyranny of Democrats, insisting on supporting the lawless actions of Obama that are both illegal and unpopular. It is they who are forcing the shutdown, with all its dismaying impacts, in the face of simple Republican efforts to restore constitutionality and the separation of powers.

But that is never how it plays out, as repeated GOP government shutdowns have proven. Yes, the Obama EO on immigration is both unpopular and illegal, but to the average voter, shutting down the agency that protects our domestic security is a far bigger problem than the EO. Obama intuitively understood this in the debt ceiling crisis in 2011 and the Obamacare shutdown debacle in 2013. Different pieces, same playbook.

And the politics of this issue is more complicated than many Republicans are willing to admit.  While a clear majority of Americans oppose POTUS’ unilateral action on immigration, an almost identical majority favor an eventual path to citizenship for illegals that are already in the US. The message from the American people is clear; they don’t want immigration policy (or government in general) by renegade decree. But the same voters favor a policy that is an anathema to the GOP base that now controls Congress.

Thus the current standoff is tailor-made to morph from a good government argument to an anti-immigrant argument, no matter how much the GOP officially objects to that characterization. That has significant political downside for the GOP as it gears up to take back the White House next year.

As a result, the only realistic path to address the President’s EO is through the courts.

17 states filed suit in federal court against the EO on December 3rd.  That case will likely be decided this week, which would get the ball rolling.  There were rumors that the case could be dismissed on technical grounds – not germane to the substance of the suit – but regardless of whether it is this suit, or another that will surely follow,  this is an issue ultimately for the Supreme Court. With the notable exception of Obamacare, POTUS’ record at the Court on constitutional issues has been one astonishing defeat after another.  If the case can get to the Justices, the probability that the EO would be overturned are real.

Can it happen quickly enough to have impact? Will all of this simply wait until 2017 and a new president? These are the uncertainties that weigh on legislators whose primary responsibility is to make sure the government functions as we fight over policy.

Before conservative activists and pundits begin screaming of “establishment Republican surrender” or worse, “endorsing amnesty” for trying to keep DHS funded, they should consult the constitution they hold so dear and do the math. It’s harsh, but its real.

Elections gave us what we have and no amount of anger can undo it.











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