海角大神

As the White House聽leaks details聽of the president鈥檚 threatened executive action on immigration, congressional Republicans are debating how to respond to what now seems like an inevitable event:

On the right, there are calls for the party to聽attach the immigration issue and, specifically, the issue of executive action to the spending bills that must be passed either during the current lame duck session聽or very soon after the new Congress has convened in January. While this is an idea that has generally only been put forward so far by the likes of Sen.聽Ted Cruz聽and various other tea party-aligned members of the House and Senate, it鈥檚 an idea that seems to be sticking around, at least as some kind of a threat. Sen. Jeff Sessions (R) of Alabama, who is likely to become the head of the Senate Budget Committee in the new Senate,聽brought up the possibility of using the spending bills to block the president, with the implicit threat that there would be a government shutdown if the White House didn鈥檛 back down. While this threat is likely to play well with the base and with backbenchers in both chambers, it鈥檚 apparent that leadership isn鈥檛 at all on board with the idea. While聽House Speaker John Boehner refuses to say that a shutdown threat is off the table, it seems clear that he would prefer to take another, less drastic course of action should the president go forward. Incoming Senate majority leader Mitch McConnell (R) of Kentucky, meanwhile,聽continues to say that a shutdown is not an option, even if it concerns a showdown with the president over executive action on immigration.

Another option apparently being weighed is to聽make the president鈥檚 actions on immigration part of the House鈥檚 lawsuit against the president:

Given the fact that this lawsuit, which was authorized back in July, has yet to be filed, it wouldn鈥檛 take too much work to shift the focus of the case as suggested here. Right now, of course, the lawsuit as authorized by the House is limited to the president鈥檚 decision to expand the period of time that employers have to comply with the Affordable Care Act鈥檚 mandate to provide health insurance coverage for employees. Leaving aside, for the moment, the preliminary issues regarding standing and the political question doctrine that apply to any lawsuit by Congress against the president, and which I鈥檝e discussed at length before聽here聽and聽here,聽this has always seemed like a particularly weak ground on which to base a lawsuit regarding the supposed illegal use of executive branch power. For one thing, there was always something quite odd about the idea of Republicans who oppose the PPACA suing the president for taking an action that, at least temporarily, provides some relief from the requirements of that law. More importantly, though, is the fact that the period for which the extension applies will have most likely expired by the time any court even got to the merits of the lawsuit, assuming that even happened. The same could not be said about the merits of a lawsuit based on the kind of relief from immigration laws that the president is contemplating, which would last at least until the end of his presidency, unless he decided to repeal it himself, which seems unlikely.

In order to proceed in this manner, of course, the House would need to pass a new resolution authorizing a change in the grounds of the lawsuit, but that would be relatively easy given the Republican majority in the body. Such a lawsuit, though, likely would not fare any better than one based on the Affordable Care Act. It would still face the same problems related to standing and other issues that a PPACA lawsuit would face, for example, and based on standing precedent, the most likely outcome of any proceedings dealing with those issues would seem to be dismissal of the lawsuit for failure to state a claim. That issue would likely get appealed, obviously, but that just means that the matter would continue to be unresolved as the days ticked down on the Obama administration, the 2016 presidential race drew closer, and more and more people took advantage of the benefits of the president鈥檚 action. Moreover, as I discussed earlier, it is by no means clear that there is anything about the proposed presidential actions that is聽per se聽illegal. So, even if we got to the point where a court considered the House鈥檚 claims on the merits it鈥檚 entirely possible that those actions will be found to be wholly within the boundaries of the authority of the executive branch as established by the Constitution, and under the discretion granted to the president and his deputies under the relevant immigration laws. In the end, of course, that may not matter since the purpose of the lawsuit has little to do with the law and everything to do with politics, including the desire to placate the more radical elements of the Republican caucus, who are likely to push for options like government shutdown fights, or even impeachment, in response to the president鈥檚 action.

There is one final option available to the GOP, of course, and that would be to push some kind of a bill on immigration reform that the president might agree to. As we sit here today, though, it鈥檚 hard to imagine that happening if the president really does pull the trigger on executive action. There鈥檚 little obvious enthusiasm in the GOP caucus in either chamber of Congress for such reform to begin with, and if the president does take the action he鈥檚 threatening, it seems as though the eagerness to act will almost completely disappear. Responding in such a manner immediately, for example, would likely be seen as the kind of capitulation that I would not expect to see from anyone on Capitol Hill so early in a congressional term. Additionally, executive action would quite obviously inflame the GOP base to such a degree that it would be politically difficult for even pro-reform Republicans to act once the President has acted.

This is why the president鈥檚 current position is politically unrealistic, if he really wants Congress to pass an immigration reform bill. Whether he likes it or not, the bill that passed the Senate is dead. It probably would not have passed the House, in any case, but it most certainly would not pass during a lame duck session. More importantly, it would not pass the new Senate that will take office in January. Rather than setting up a confrontation based on a bill that will be dead once the current Congress ceases to exist, the answer will be to start over in a new Congress. Which means that the new bill will have to be something that can pass both the House and the new Senate. 聽That is聽a political reality that the president doesn鈥檛 seem to recognize.聽聽Of course, that assumes that he is making this threat because he wants to see Congress act. I don鈥檛 think he does. I think that, like every other Democrat, he wants to keep the immigration issue unresolved so that his party can continue to exploit it to appeal to Latino voters. This doesn鈥檛 let the GOP off the hook, of course, and it would be entirely logical for the president to put the new Congress on notice that he will act if they don鈥檛. That, however, is a battle for 2015, not a battle for a lame duck session.

All of that notwithstanding, it does appear, for the moment, as if the president is going to take action of some kind. If he does, though, it鈥檚 not at all clear what the GOP can do to stop him or to push back, other than acting on immigration reform itself. Unfortunately, the president鈥檚 very actions are likely to make congressional action of any kind difficult if not impossible. It鈥檚 almost as if neither side of this debate actually wants to get anything done, isn鈥檛 it?

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.