Collision Ahead

“We hope the president isn’t going to do that,” Kentucky’s Mitch McConnell, the soon-to-be Senate majority leader, said November 13, in his first postelection press conference at the Capitol.

McConnell’s deputy, Texas senator John Cornyn, is also hopeful. “I hope he delays it permanently,” Cornyn said. “But at least I hope the president will give us an adequate time to be able to work together to try to begin to build a bipartisan consensus on repairing our broken immigration system.”

Renee Ellmers, North Carolina congresswoman and an ally of the House GOP leadership, likewise sounded a note of hope. “I wish that the president would pay more attention to what happened in the election, and use less rhetoric,” she said.

Some Republicans are practically on bended knee. At a November 13 House GOP conference meeting, Speaker John Boehner told his colleagues that he entreated President Obama not to act unilaterally on immigration. “He told the president to just give us one more chance to pass an immigration bill,” said one congressman.

Boehner and the House are unlikely to get that chance. For weeks, the White House hinted the president would take executive action on immigration after having its reform efforts blocked by the Republican-led House. There were clues the administration was preparing to expand its deferred action program for the children of illegal immigrants to those immigrants themselves. Last month, the AP reported that the feds made a large order of a certain stock of paper—the kind used to issue green cards to immigrants. When asked about the purchase, White House press secretary Josh Earnest just laughed. Then, November 12, Fox News reported Obama plans to sign an executive order that would protect from deportation up to five million illegal immigrants, giving them permits to work legally in the United States and even, yes, green cards.

Immigration hawks in the GOP are preparing for battle. In an op-ed for Politico Magazine, Alabama senator Jeff Sessions urged “no surrender” on the issue. “The President will arrogate to himself the sole and absolute power to decide who can work in the U.S., who can live in the U.S., and who can claim benefits in the U.S.—by the millions,” Sessions wrote. “His actions will wipe out the immigration protections to which every single American citizen is lawfully entitled. And his actions will ensure—as law enforcement officers have cried out in repeated warnings—a ‘tidal wave’ of new illegal immigration.”

How to stop an executive amnesty? “There are no answers right now,” said a senior House GOP aide. “There are options, but there is no set path.”

Here’s one option: Target the money. Funding for the government runs out December 11, and House leaders are hoping to pass a long-term spending bill (with the lame-duck Democratic Senate) before then. But immigration hawks say Congress should instead pass a short-term continuing resolution that funds the government into early 2015. The united Republican Congress can then more effectively fight the Obama administration on funding the executive order.

Matt Salmon, a congressman from Arizona, has drafted a letter to the chairman and the ranking member of the House Appropriations Committee requesting that any upcoming spending bill include language that would block funding for the executive action. Fifty-nine House Republicans—not exactly a majority of the conference—signed it.

Republican David Vitter of Louisiana is pushing his colleagues in the Senate to back this idea. “I’ve taken the position, with a lot of folks—and I think it’s far broader than some conservatives on immigration—that we can’t do anything like a long-term spending bill,” Vitter said in a phone interview. “That will give up opportunities to block any action.” He also suggests a long-term spending bill that excludes homeland security alongside a short-term bill funding the department. That way, fighting over funding the executive order in early 2015 won’t risk a shutdown of the entire government.

“Nobody wants a shutdown,” said Salmon in the basement of the Capitol. “But I think that’s where everybody’s really jittery.”

That’s for sure. Mitch McConnell categorically ruled it out in his November 13 press conference. “We will not be shutting the government down or defaulting on the national debt,” he declared. What if the president moves forward on his immigration action, a reporter pressed. “We will not be shutting the government down,” McConnell repeated, punctuating his words.

“If we are fortunate to have both majorities, take away any cliff you can have hanging out there,” House majority leader Kevin McCarthy told Politico last month. “Why put cliffs up that hold us back from doing bigger policy?”

The problem is that any funding bill would need a supermajority (i.e., Democratic support) in the Senate and Obama’s signature—the former is possible but difficult, and the latter is virtually impossible. And it’d be a tall order to override a presidential veto.

Republican leaders in both houses are terrified of a repeat of their “defund Obamacare” fight in October 2013. Immigration hawks point out an important difference: Ted Cruz and his conservative allies in the Obamacare fight were trying to defund an existing law, passed by Congress and signed by the president. Blocking an executive action on immigration, they argue, is simply Congress using its constitutional power of the purse.

Senior House GOP aides believe there’s no way to win a funding fight, no matter how it’s framed, though they say the idea’s not completely off the table. It all depends on where the House conference is on the issue.

Alabama congressman Mo Brooks suggests the funding battle isn’t the only, or even the best, option. Brooks said in a phone interview the House could pass a resolution to request a “declaratory judgment” from a federal judge on the legality of Obama’s executive action. If that’s successful, the court could issue a writ requiring the president to stop executing the amnesty.

It’s a strategy John Boehner’s office has floated. Boehner spokesman Kevin Smith told Politico the speaker’s proposed lawsuit against the administration’s selective execution of Obamacare could be “broadened” to include language on an immigration executive action. That lawsuit hasn’t yet been filed, and it’s unclear it ever will be. There’s as little political will among House leadership for suing the president as for battling him over funding.

For hawks like David Vitter, though, the politics are in the GOP’s favor: “I don’t think we just scored a big election victory to lay down in a moment of constitutional crisis.” 

Michael Warren is a staff writer at The Weekly Standard.